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NAVAL WAR COLLEGE 



International Law 
Situations 



WITH SOLUTIONS AND NOTES 



1927 



UNITED STATES- 
GOVERNMENT PRINTING OFFICE 
WASHINGTON 
. 1929 



ADDITIONAL COPIES 

OF THIS PUBLICATION MAY BE PROCURED FROM 
THE SUPERINTENDENT OF DOCUMENTS 
U. S. GOVERNMENT PRINTING OFFICE 
WASHINGTON, D. C. 

AT 

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PREFACE 



The discussions upon international law were, as in 
recent years, conducted under the auspices of the Naval 
War College authorities by George Grafton Wilson, 
LL. D., professor of international law in Harvard Uni- 
versity, who also drew up the notes which are published in 
the present volume. The discussion aimed to consider the 
situations from the point of view of the belligerent on 
the offensive, the belligerent on the defensive^ and the 
neutral. 

Criticisms of the material presented and suggestions 
as to topics and situations that should be discussed will 
be welcomed by the Naval War College. 

J. R. Poinsett Pringle, 
Rear Admiral, United States Navy, 

President Naval War College. 



June 5, 1928. 



in 



CONTENTS 



Page 

Situation I. — Goods on neutral merchant vessel 1 

Solution . 1 

Notes 1 

General 1 

Definition 2 

Early practice 3 

Later attitudes 4 

Different classifications 5 

International consideration 7 

Destination 8 

War and commerce 9 

Neutrality and equilization 10 

Liability for contraband 11 

Delivery of goods 12 

Doubtful destination 13 

Contraband lists 14 

British and continental views 14 

Ratio 15 

Department of State, 1915 17 

Parliamentary discussion of contraband, 1916 20 

British statement, 1916 21 

British contraband list, 1916 23 

Lists of contraband and categories 23 

British decisions in World War 24 

Consignments 26 

Position of Admiral Rodgers 27 

Opinion of Sir Erie Richards 28 

Moore on doctrine of contraband 29 

Admiral Jellicoe on treatment of seized vessels 30 

Convoy and certification 31 

The "Black Lists" 34 

Proposal to prohibit export of contraband 35 

Treaty provisions 36 

Certification of cargo 37 

Letters of assurance, 1917 39 

General 41 

Solution . 42 

v 



VI CONTENTS 

Page 

Situation II. — Visit and search 43 

Solution 43 

Notes 43 

Naval War College discussions 43 

Early understanding 44 

The Zamora, 1916 44 

Case of the Maria, 1799 45 

Bringing seized vessels to port 46 

Resolution of the Institute of International Law, 

1913 47 

Changing conditions of maritime war 48 

Statement of British attorney general, 1917 48 

J. A. Hall's opinion, 1921 49 

Visit and search before 1915 51 

The case of the Carthage, 1912 52 

American-British exchange of notes, 1914-15 53 

War-zone proclamation, February 4, 1915 57 

Note of Sir Edward Grey, 1915 58 

American-British notes, October 21, 1915, April 

24, 1916 r 58 

Diplomatic correspondence on the Bernisse and 

the Elve, 1917 64 

Court decision on the Bernisse and the Elve, 1920_ 67 

British procedure, 1914-1918 68 

Resume" 69 

Solution 72 

Situation . III. — Armed merchant vessels 73 

Solution 73 

Notes. 73 

General 73 

Early policy of the United States 74 

Declaration of Paris, 1856 74 

Attitude of United States, late nineteenth century. , 75 

Pre-war British attitude 75 

Xate German attitude 77 

Early British notes on armed merchant vessels in 

World War__ 77 

Reply of the United States 80 

British assurances, 1914 81 

Memorandum of State Department, September 

19, 1914 _ 83 

German attitude 84 

Proposals of Department of State, January 18, 

1916 85 



CONTENTS VII 

Situation III — Continued. 

Notes — Continued. Page 

Replies 87 

American memorandum, March 25, 1916 89 

Professor Hyde's opinion on United States mem- 
orandum of March 25, 1916 92 

British Admiralty opinion, 1916 93 

Netherlands position on armed merchant vessels. _ 94 

Official statements 97 

British explanation, 1917 100 

German war-zone note, January 31, 1917 102 

Breaking of diplomatic relations, February 3, 1917_ 102 
American attitude after breaking diplomatic rela- 
tions 103 

Other neutral problems 103 

Conclusion 105 

Solution 105 

Appendices — Laws of various countries for the admission of 
foreign warships to their ports and harbors: 

I. Belgium, February 18, 1901 106 

II. Belgium, December 30, 1923 110 

III. Denmark, May 11, 1921 113 

IV. Italy, use of radio by foreign warships in port, 

etc., July 10, 1924 116 

V. Norway, February 14, 1922 117 

VI. Serbia— Croatia— Slovakia, June 20, 1924 119 

VII. Venezuela, June 26, 1920 124 



International Law Situations 



WITH SOLUTIONS AND NOTES 



Situation I 

GOODS ON NEUTRAL MERCHANT VESSEL 

States X and Y are at war. Other states are neutral. 
A cruiser of X meets a private merchant vessel flying 
the flag of state Z. The papers of the vessel show that 
port O in state Y is the last port of call for the merchant 
vessel. The vessel has the following cargo : One-sixth 
raw molasses and one-sixth petroleum, consigned to port 
P in state X; one-eighth iron ore and one-eighth fancy 
goods, consigned to port Q in state R; one-eighth fancy 
shoes for ladies, one-eighth golf suits for men, one-sixth 
valuable art-rug specimens for national museum, con- 
signed to port O. 

The master of the merchant vessel of state Z maintains 
that his vessel and cargo are not liable to seizure because 
of ratio and list of goods, consignment to neutral ports, 
geographical location of ports with reference to belliger- 
ents, and because the papers on board include a certifi- 
cate of innocent character of goods from authorities of 
Z as well as a letter of assurance from the consul of Y 
at the port of departure. 

Are these grounds sufficient to exempt the merchant 
vessel from liability to seizure? 

SOLUTION 

The contentions of the master are not grounds suffi- 
cient to exempt the merchant vessel from liability to 
seizure. 

NOTES 

General. — While the subject of contraband has often 
been discussed at this Xaval War College, it will be con- 

l 



2 GOODS ON" NEUTRAL MERCHANT VESSEL 

venient to have a brief statement in regard to the de- 
velopment of the principle in connection with this situa- 
tion. Details as to other aspects of contraband may be 
found by reference to the General Index, International 
Law Publications, Naval War College, 1901-1920. 

Definition. — Contraband implies the existence of the 
idea of neutrality. The deA^elopment of the idea of 
neutrality is comparatively recent. Grotius gave only 
scant reference to the subject and his great work first 
issued in 1625 was entitled " Law of War and Peace." 

While not using the term " contraband," Grotius in 
1625 gave a classification of articles of commerce which 
has served as a basis for the generally recognized dis- 
tinctions. He enumerates : 

1. Those things which have their sole use in war, such as arms. 

2. Those things which have no use in war, as articles of luxury. 

3. Those things which have use bo'h in war and out of war, 
as money, provisions, ships, and those things pertaining to ships. 
(De Juri Belli ac Pacis, III, I, 5.) 

Grotius further says, in regard to the conditions under 
which articles of the third class may come : 

In the third class, objects of ambiguous use, the state of war 
is to be considered. For if I cannot defend myself except by 
intercepting what is sent, necessity, as elsewhere explained, gives 
us a right to intercept it, but under the obligation of restitution, 
except there be cause to the contrary. If the supplies sent 
impede the exaction of my rights, and if he who sends them 
may know this — as if I were besieging a town or blockading a 
port, and if surrender or peace were expected, he will be bound 
to me for damages ; as a person would who liberates my debtor 
from prison, or assists his flight to my injury ; and to the 
extent of the damage his property may be taken, and ownership 
thereof be assumed for the sake of recovering my debt. If he 
have not yet caused damage, but have tried to cause it, I shall 
have a right by the retention of his property to compel h ; m to 
give security for the future by hostages, pledges, or in some other 
way. But if, besides, the injustice of my enemy to me be 
very evident, and he confirms him in a most unjust war, he 
will then be bound to me not only civilly, for the damage, but 
also criminally, as being one who protects a manifest criminal 
from the judge who is about to inflict punishment, and on that 



EARLY CONTRABAND LISTS 3 

ground it will be lawful to take such measures against him as 
are suitable to the offense, according to the principles laid down 
in speaking of punishment; and therefore to that extent he may 
be subjected to spoliation. (Whewell's translation, Grotius, De 
Jure Belli ac Pacis, III, I, 5.) 

The positions here taken by Grotius in regard to what 
is now termed " conditional contraband " would not now 
be sustained even though his classification of contraband 
should be generally approved. 

Early practice. — The classification made by Grotius 
was in no way his invention, for distinctions had been 
made much earlier than 1625, and Grotius stated the 
practice which had grown up among nations. A treaty 
of Great Britain and Holland (1625) uses the word 
"contraband." A British proclamation of 1625 men- 
tions that commerce with the enemy in the following 
articles is prohibited — 

any manner of graine, or victualls, or any manner of provisions 
to serve to build, furnish, or arme any shipps of warr, or any 
kind of munition for warr, or materials for the same, being not 
of the nature of mere merchandize. 

A British proclamation made a few months later is 
detailed. In this " His Majestie " denounces as pro- 
hibited articles — 

ordinance, amies of all sortes, powder, shott, match, brimstone, 
copper, iron, cordage of all kinds, hempe, saile, canvas, danuce 
pouldavis, cables, anchors, mastes, rafters, boate ores, balcks, 
capraves, deale board, clap board, pipe staves, and vessels and 
vessel staffe. pitch, tarr, rosen, okam, corne, graine, and victualls 
of all sorts, all provisions of shipping, and all munition of warr, 
or of provisions for the same, according to former declarations 
and acts of state, made in this behalf in the tyme of Queen 
Elizabeth, of famous memorie. 

The practice before the days of Grotius had recog- 
nized goods as liable to penalty, such as arms, and as 
free from penalty, such as articles of luxury. Grotius 
endeavors to make clear that a third class should be 
recognized, a class of use both for peaceful and for war- 
like purposes. 



4 GOODS ON NEUTRAL MERCHANT VESSEL 

Later attitudes. — As maritime commerce developed and 
as international trade became more and more important 
the demand for clear definitions of contraband became 
more imperative. From 1780, the time of the armed 
neutrality, neutrals were more positive in their assertion 
of their claim that property under neutral flags should 
be respected, and the definition of contraband became 
clearer. Even before this date the doctrine " free ships, 
free goods " had received strong support and had been 
embodied in treaties, but attempts to relieve commerce 
from interference became more frequent when steam and 
other forces removed the barriers of space. 

This is evident in the case of the controversy in regard 
to coal, which became important during the Crimean 
War (1854r-1856) through the introduction of steam power 
in vessels of war. The Declaration of Paris mentions but 
does not define contraband. Great Britain maintained 
that coal was an article ancipitis usus and conditional con- 
traband. Though Secretary Cass in 1859 regarded the 
inclusion of coal as contraband as having " no just claim 
for support in the law of nations," in the Civil War, 
however, the Government of the United States con- 
sidered coal as conditional contraband. Germany in 1870 
maintained that the export of coal from Great Britain 
to France should be prohibited, and France reasserted 
her declaration of 1859 that coal under no circumstances 
should be considered contraband. 

Hall said regarding coal as conditional contraband: 

The view taken by England is unquestionably that which is 
most appropriate to the uses of the commodity with which it 
deals. Coal is employed so largely, and for so great a number of 
innocent purposes, the whole daily life of many nations is so 
dependent on it by its use for making gas, for driving locomotives, 
and for the conduct of the most ordinary industries, that no 
sufficient presumption of an intended warlike use is afforded 
by the simple fact of its destination to a belligerent port. But 
on the other hand, it is in the highest degree noxious when 
employed for certain purposes ; and when its destination to such 
purposes can be shown to be extremely probable, as by its con- 



LATE CLASSIFICATIONS O 

signment to a port of naval equipment, or to a naval station, 
such as Bermuda, or to a place used as a port of call, or as a 
base of naval operations, it is difficult to see any reason for 
sparing it which would not apply to gunpowder. One article 
is as essential a condition of naval offense as is the other. (Hall's 
Int. Law, 8th ed., p. 786.) 

Different clmsifldations. — The classification of articles 
carried to a belligerent would if determined by the enemy 
generally be strict; if determined by a neutral liberal. 
Both would admit that articles solely of use for purposes 
of war should be contraband and usually that articles 
which could not be of use in war should be free. Many 
states, particularly in continental Europe, would make 
no further classification than to say all articles which 
may be used in war are contraband and others are free. 

These differences shown by various states have usually 
been due to the benefits or injury which might accrue to 
the respective countries. The same state has at different 
times maintained inconsistent positions, Russia in 1884 
declared she would never recognize coal as contraband, 
but it was included in the absolute contraband list in the 
Russo-Japanese War in 1904^5. 

Against this inclusion Great Britain protested vigor- 
ously. In 1915 Great Britain and Russia issued identical 
lists of contraband including fuel in conditional con- 
traband. 

There seemed to have been growing up during the 
latter half of the nineteenth century a considerable sup- 
port for the idea of contraband by nature and contraband 
by destination. 

The essential elements of contraband of war were well 
stated by Historicus: 

In order to constitute contraband of war, it is absolutely essen- 
tial that two elements should concur — viz. a hostile quality and a 
hostile destination. If either of these elements is wanting, there 
can be no such thing as contraband. Innocent goods going to 
a belligerent port are not contraband. Here there is a hostile 
destination, but no hostile quality. Hostile goods, such as muni- 
tions of war, going to a neutral port are not contraband. Here 



6 GOODS ON NETJTEAL MERCHANT VESSEL 

there is a hostile quality, but no hostile destination. (Historicus 
on International Law, p. 191.) 

The United States, Great Britain, and Japan have 
usually divided the articles which might be used in war 
into those solely for such use and those which might be 
used for war purposes or for peace purposes, such as food- 
stuffs. The great difficulty was the assignment of cer- 
tain articles to the proper category. Chief Justice Chase 
in the case of the Peter ho ff in 1866 stated a simple fact 
when he said : 

The classification of goods as contraband or not contraband 
has much perplexed text writers and jurists. A strictly accurate 
and satisfactory classification is perhaps impracticable. (5 Wal- 
lace, p. 28.) 

Mr. Balfour said in 1904 : 

I could not give a list of things which are or are not contra- 
band of war, nor could any international lawyer fulfill any such 
demand. 

There had been many attempts to determine the list of 
contraband by treaty agreements between two or more 
states. A treaty between the United States and Prussia 
of 1799, revised in 1828, provides in Article XIII that : 

All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, 
balls, muskets, flints, matches, powder, saltpeter, sulphur, cuirasses, 
pikes, swords, belts, cartouch boxes, saddles, and bridles, beyond 
the quantity necessary for the use of the ship, or beyond that 
which every man serving on board the vessel or passenger ought 
to have, and in general whatever is comprised under the denomi- 
nation of arms and military stores, of what description so ever, 
shall be deemed objects of contraband. (VIII U. S. Stat. p. 162.) 

During the Russo-Japanese War of 1904-5 there were 
many diplomatic controversies in regard to the contra- 
band list. In these controversies the United States and 
Great Britain took important parts. Russia was brought 
to admit the principle of conditional contraband as ap- 
plying to certain articles: The British ambassador wrote 
to the Russian foreign office on October 9, 1904 : 

The principle of conditional contraband has already been 
recognized by the Russian Government, and it only remains to 



CONDITIONAL CONTEABAND 7 

extend its application to coal, cotton, and other articles which 
may be used for peaceful or warlike purposes; according to cir- 
cumstances. Such a measure would be consistent with the law 
and practice of nations and with the well-established rights of 
neutrals. While maintaining the rights of a belligerent, the rights 
of neutrals would be respected, and the source of a serious and 
unprofitable controversy would be removed. (Parliamentary 
Papers, Russia, No. 1 [1905], p. 24.) 

The American position early in the nineteenth century 
regarding coal as conditional contraband only is well 
stated in the note of Mr. Choate to Lord Lansdowne of 
June 24, 1904: 

My Lord : Referring to our recent interviews, in which you 
expressed a desire to know the views of my Government as to 
the order issued by the Russian Government on the 28th of 
February last, making " every kind of fuel, such as coal, naptha, 
alcohol, and other similar materials, unconditionally contraband," 
I am now able to state them as follows : 

These articles enter into great consumption in the arts of 
peace, to which they are vitally necessary. They are usually 
treated not as " absolutely contraband of war," like articles that 
are intended primarily for military purposes in time of war, such 
as ordnance, arms, ammunition, etc., but rather as " conditionally 
contraband " ; that is to say, articles that may be used for or 
converted to the purposes of war or peace, according to circum- 
stances. They may rather be classed with provisions and food- 
stuffs of ordinary innocent use, but which may become absolutely 
contraband of war when actually and especially destined for 
the military and naval forces of the enemy. * * * The recog- 
nition in principle of the treatment of coal and other fuel and 
raw cotton as absolutely contraband of war might ultimately lead 
to a total inhibition of the sale by neutrals to the people of 
belligerent states of all articles which could be finally converted 
to military uses. Such an extension of the principle, by treating 
coal and all other fuel and raw cotton as absolutely contraband 
of war, simply because they are shipped by a neutral to a non- 
blockaded port of a belligerent, would not appear to be in accord 
with reasonable and lawful rights of a neutral commerce. (1904, 
Foreign Relations, U. S., p. 334.) 

International consideration. — Three years later, at the 
Second Hague Conference, the British representative 
proposed the entire abolition of contraband, but no agree- 



8 GOODS ON NEUTRAL MERCHANT VESSEL 

ment could be reached by the 44 States attending, though 
a tentative list of absolute contraband received general 
approval but was not formally adopted. 

It remained for the International Naval Conference 
at London in 1908-9 attended by representatives of the 
10 naval powers, to agree upon contraband lists which 
were then regarded as generally satisfactory. This con- 
ference in the Declaration of London, signed February 26, 
1909, fixed upon a list of absolute contraband, a list of 
conditional contraband, and an absolutely free list. 
Article 22 of the Declaration of London, the list approved 
at The Hague in 1907, includes as absolute contraband 11 
categories, all of which are primarily of use for war 
except beasts of burden. Article 24 contains 14 categories 
of conditional contraband, food and fuel being the most 
important. Article 28 contains 17 categories of articles 
not to be declared contraband. Among the most impor- 
tant of these are raw cotton, wool and other textiles, rub- 
ber, metallic ores. The Declaration of London was not 
ratified and its provisions as to contraband were not 
adopted in the World War. 

Destination. — When in early days goods were either 
absolutely contraband or else free, all contraband goods 
bouMd * direct for a belligerent country were liable to 
capture and other goods were free. The destination was 
usually easily determined and the liability was corre- 
spondingly clear. With the introduction of the condi- 
tional contraband list the matter of destination became 
much more important, for these articles, such as food and 
fuel, in 1909 were liable to capture not when bound to 
the belligerent country, but only when bound for the 
military forces, or for places which were clearly serving 
to support the military forces. In general, goods what- 
ever their nature were exempt from capture if having 
a neutral destination. Goods of noncontraband nature 
were exempt whatever their destination. Goods of the 
nature of conditional contraband were liable to capture 
if destined to a military port or to military forces, but 



RISKS OF PARTIES 9 

otherwise exempt. Goods of a warlike nature were liable 
to capture if bound for the enemy's country. 

War and commerce. — The fundamental principle was 
that the fact of existence of war between states did not 
create a condition of belligerency for outside parties. 
The fact that France and Germany were at war did 
not create a hostile relation between Italy and either 
of the belligerents. The relations of Italy remained as 
before and Italy would be on terms of friendship with 
both belligerents. The Italian commerce should be free 
as in time of peace except for restraints necessary for 
legitimate operations of war. The belligerents should 
be permitted to carry on the hostilities without interfer- 
ence except for such restraints as would be necessary 
in order that the legitimate commerce of neutrals might 
be maintained. 

Since the state of war is admitted as legitimate, the 
exercise of belligerent rights is legitimate. The exercise 
of these rights implies the right to perform such acts as 
are necessary to reduce the enemy to submission, pro- 
vided these acts do not impair generally accepted neutral 
rights. Here is always the point of conflict. What is 
legitimate for the neutral and what is legitimate for the 
belligerent ? 

The risk which the belligerent runs is that the contra- 
band may be used against him. The risk which the 
owner of contraband runs is loss through capture. The 
risk which the carrier runs is loss of freight, of delay for 
purpose of bringing in the contraband for adjudication, 
and if vessel and contraband have the same owner the 
risk that both may be condemned. Liability begins only 
with knowledge. 

George V of Hanover in the middle of the nineteenth 
century seemed to wish to extend the penalty for carry- 
ing contraband and provided by law for a $500 fine or 
six months' imprisonment. This penalty was to be ap- 

1802 — 29 2 - 



10 GOODS ON NEUTEAL MERCHANT VESSEL 

plied also to the carrying of troops, dispatches, or 
couriers. 

Neutrality and equalization. — It has often been main- 
tained that neutrality implied merely impartiality. It 
has also been maintained that it involved equal rights 
and privileges for both belligerents. In a note of June 
29, 1915, from the Austro-Hungarian Ministry of For- 
eign Affairs to the United States, it was intimated that 
the Government of the United States should take meas- 
ures to equalize commercial relations between the United 
States and both belligerent parties. To this the United 
States replied on August 12, 1915: 

The Government of the United States has given careful con- 
sideration to the statement of the Imperial and Royal Govern- 
ment in regard to the exportation of arms and ammunition from 
the United States to the countries at war with Austria-Hungary 
and Germany. The Government of the United States notes with 
satisfaction the recognition by the Imperial and Royal Govern- 
ment of the undoubted fact that its attitude with regard to the 
exportation of arms and ammunition from the United States is 
prompted by its intention to " maintain the strictest neutrality 
and to conform to the letter of the provisions of international 
treaties," but is surprised to find the Imperial and Royal Govern- 
ment implying that the observance of the strict principles of the 
law under the conditions which have developed in the present war 
is insufficient, and asserting that this Government should go 
beyond the long recognized rules governing such traffic by neutrals 
and adopt measures to " maintain an attitude of strict parity with 
respect to both belligerent parties." 

To this assertion of an obligation to change or modify the 
rules of international usage on account of special conditions the 
Government of the United States can not accede. The recogni- 
tion of an obligation of this sort, unknown to the international 
practice of the past, would impose upon every neutral nation a 
duty to sit in judgment on the progress of a war and to restrict 
its commercial intercourse with a belligerent whose naval suc- 
cesses prevented the neutral from trade with the enemy. The con- 
tention of the Imperial and Royal Government appears to be that 
the advantages gained to a belligerent by its superiority on the 
sea should be equalized by- the neutral powers by the establish- 
ment of a system of nonintercourse with the victor. The Imperial 
and Royal Government confines its comments to arms and am- 



LIABILITY FOE CONTRABAND 11 

munition, but if the principle for which it contends is sound, it 
should apply with equal force to all articles of contraband. A 
belligerent controlling the high seas might possess an ample sup- 
ply of arms and ammunition, but be in want of food and clothing. 
On the novel principle that equalization is a neutral duty, neutral 
nations would be obligated to place an embargo on such articles 
because one of the belligerents could not obtain them through 
commercial intercourse. 

But if this principle, so strongly urged by the Imperial and 
Royal Government, should be admitted to obtain by reason of the 
superiority of a belligerent at sea, ought it not to operate equally 
as to a belligerent superior on land? Applying this theory of 
equalization, a belligerent who lacks the necessary munitions to 
contend successfully on land ought to be permitted to purchase 
them from neutrals, while a belligerent with an abundance of war 
stores or with the power to produce them should be debarred 
from such traffic. 

Manifestly the idea of strict neutrality now advanced by the 
Imperial and Royal Government would involve a neutral nation 
in a mass of perplexities which would obscure the whole field of 
international obligation, produce economic confusion, and deprive 
all commerce and industry of legitimate fields of enterprise, al- 
ready heavily burdened by the unavoidable restrictions of war. 
(Spec. Sup. Amer. Jour. Int. Law, vol. 9, July, 1915, p. 166.) 

Liability for contraband. — This liability is always 
conditioned by the destination of the goods. Sir William 
Scott, the English judge, in pronouncing in 1799 on a 
cargo of cheese on board the Jonge Margaretha bound 
from Amsterdam to Brest, gives a statement which is 
almost modern : 

But the most important distinction is whether the articles were 
intended for the ordinary uses of life, or even for mercantile 
ships' use, or whether they were going with a highly probable 
destination to military use? Of the matter of fact on which the 
distinction is to be applied, the nature and quality of the port to 
which the articles were going is not an irrational test. If the 
port is a general commercial port, it shall be understood that 
the articles were going for civil use, although occasionally a 
frigate or other ships of war may be constructed in that port. 
On the contrary, if the great predominant character of a port 
be that of a port of naval military equipment, it shall be intended 
that the articles were going for military use, although merchant 
ships resort to the same place; and although it is possible that 



12 GOODS ON" NEUTKAL MERCHANT VESSEL 

the articles might have been applied to civil consumption — for it 
being impossible to ascertain the final application of an article 
ancipitis usus — it is not an injurious rule which deduces both 
ways in the final use from the immediate destination, and the 
presumption of a hostile use founded on its destination to a 
military port is very much inflamed if at the time when the 
articles were going a considerable armament was notoriously pre- 
paring to which a supply of these articles would be eminently 
useful. * * * I think myself warranted to pronounce these 
cheeses to be contraband. (1 C. Rob., p. 188, 189.) 

Delivery of goods. — There are in many treaties clauses 
permitting the master of a merchant vessel to deliver to 
a belligerent articles of contraband and then to proceed. 
One of the earliest of these was in 1667 between Great 
Britain and the United Netherlands. The United States 
made such a treaty with Sweden as early as 1783 which 
is still in force. The clause relating to the delivery of 
contraband in the Prussian treaty, 1799, was important 
in the World War and involved in the negotiations 
with Germany in regard to the American vessel, the 
William P. Frye, which w T as sunk by the German cruiser 
Prim Eitel Friedr'ch on the high seas on January 28, 
1915. This clause is in part as follows: 

And in the same case of one of the contracting parties being 
engaged in war with any other Power, to prevent all the diffi- 
culties and misunderstandings that usually arise respecting 
merchandise of contraband, such as arms, ammunition, and 
military stores of every kind, no such articles carried in the 
vessels, or by the subjects or citizens of either party, to the 
enemies of the other, shall be deemed contraband so as to induce 
confiscation or condemnation and a loss of property to individuals. 
Nevertheless it shall be lawful to stop such vessels and articles, 
and to detain them for such length of time as the captors may 
think necessary to prevent the inconvenience or damage that 
might ensue from their proceeding, paying, however, a reasonable 
compensation for the loss such arrest shall occasion to the pro- 
prietors, and it shall further be allowed to use in the service of 
the captors, the whole or any part of the military stores so 
detained, paying the owners the full value of the same, to be 
ascertained by the current price at the place of its destination. 
But in the case supposed of a vessel stopped for articles of contra- 
band, if the master of the vessel stopped will deliver out the 



DESTINATION OF CONTRABAND 13 

goods supposed to be of contraband nature he shall be admitted to 
do it, and the vessel shall not in that case be carried into any 
port, nor further detained, but shall be allowed to proceed on her 
voyage. (8 U. S. Stats. 162, 168; also U. S. Treaties and Con- 
ventions, 1776-1909, vol. 2, p. 1729.) 

Doubtful destination. — Destination is not always easy 
to prove, but in case of reasonable doubt the belligerent is 
justified in bringing in a vessel supposed to be engaged in 
carriage of contraband. This doubt may be due to ir- 
regularity of the vessel's papers or to other reasons. The 
commander of the belligerent ship can not act in a judi- 
cial capacity and in case of doubt should send a vessel 
to the prize court. 

As conditional contraband was liable to capture only 
when bound for the military forces or use, it is not 
always easy to determine the course of action to be taken 
by a belligerent commander. The Declaration of London 
of 1909 endeavored to render such destination more clear 
and provided in article 34 that : 

There is presumption of the destination referred to in Article 
33 if the consignment is addressed to enemy authorities, or to 
a merchant, established in the enemy country, and when it is 
well known that this merchant supplies articles and material 
of this kind to the enemy. The presumption is the same if the 
consignment is destined to a fortified place of the enemy, or to 
another place serving as a base for the armed forces of the enemy ; 
this presumption, however, does not apply to the merchant vessel 
herself bound for one of these places and of which vessel it is 
sought to show the contraband character. (1909, N. W. C. Int. 
Law, Topics, p. 83.) 

According to article 35 the ship's papers were to be 
" conclusive proof of the voyage of the vessel as also 
of the port of discharge of the goods." Great Britain, 
France, and Kussia in 1914 greatly extended the liability 
by pronouncing liable to capture goods of the nature of 
conditional contraband bound for a neutral port if con- 
signed "to order," to a consignee in enemy's territory, 
or if it is not clear to whom the consignment is made. 
The burden of proof of innocent character of the cargo 



14 GOODS ON NETJTKAL MERCHANT VESSEL 

is placed upon the owners of such goods, and if an 
enemy is drawing supplies for its forces from a neutral 
country even more stringent rules may be applied. 

Contraband lists. — It was thought in 1909 that a list of 
contraband and regulations for its capture which would 
be satisfactory for many years had been drawn, but in 
1914 the greater maritime powers showed a disposition to 
depart from its provisions and arbitrarily to establish 
lists which should be for their presumed and temporary 
advantage. Clearly it would have been better for the 
world and probably for the belligerents themselves to 
abide by some general agreement which had been drawn 
by representatives of the great maritime powers in a 
time of peace. Controversies raged in regard to the 
treatment of cotton, food, and other articles. Neutral 
states were irritated by restraints on trade. It is evident 
that an equable adjustment of belligerent and neutral 
rights would have been far better even in time of hostili- 
ties and that to maintain the principles of justice is 
not merely expedient but an evidence of farseeing 
statesmanship. 

British and continental views. — The British Royal 
Commission of Supply of Food and Raw Material in 
Time of War in 1905 says in regard to the difference 
between the British and continental points of view in 
regard to contraband that : 

All discussions as to the nature of the goods which may be 
treated as contraband start with the threefold distinction between 
things which are useful only in war, things which are useless for 
war, and things which are useful both in war and in peace. As 
to articles of the first class, there is practically no difference of 
opinion. Cannon, bayonets, uniforms and ammunition, for in- 
stance, are admitted on all hands to be contraband of war ; the 
sole question being whether only finished articles are of this 
character, or whether the character is shared also by their com- 
ponent parts, and by machinery for putting them together. Ar- 
ticles of the second class, e. g., a piano or a portrait by Gains- 
borough, are as obviously" li innocent." It is as to the third class 
of articles, res anoipiUs usus, that controversies have arisen ; 



RATIO OF CONTRABAND 15 

and here two opposing schools of opinion have to be reckoned 
with. According to what may be called the " Continental school," 
the term " contraband " covers only articles the use of which is 
exclusively warlike ; while according to what may be called the 
" British school," which is also that of the United States, the 
list of contraband is an elastic one, comprising not only such 
" absolutely " contraband articles as would be included in the 
first category mentioned above, but also articles which are 
" conditionally " or " relatively " contraband with reference to the 
special character of the war. It would appear, however, that the 
opposition between the Continental and British views is not un- 
likely to end in a reasonable compromise. Already Continental 
lists tend to include the materials out of which, and the machin- 
ery by means of which, arms and ammunition are manufactured ; 
while the " conditional " contraband of the British school is 
admittedly restricted to articles indicated as noxious by special 
circumstances, and it is subjected only to the mitigated penalty of 
pre-exemption instead of to confiscation. (Vol. I, p. 23, sec. 96.) 

Ratio. — With reference to the ratio of contraband in 
a vessel's cargo, the question is usually as to its effect 
upon the liability of the vessel. There have been differ- 
ing doctrines as to the proportion of contraband that 
would make the vessel liable to confiscation. The Decla- 
ration of London reached an agreement which seemed 
generally acceptable, in 1909. 

Article 40 

The confiscation of the vessel carrying contraband is allowed 
if the contraband forms, either by value, by weight, by volume or 
by freight, more than half the cargo. 

It was universally admitted, however, that in certain cases 
the condemnation of the contraband does not suffice, and that con- 
demnation should extend to the vessel herself, but opinions dif- 
fered as to the determination of these cases. It was decided to 
fix upon a certain proportion between the contraband and the 
total cargo. 

But the question divides itself: (1) What shall be the 
proportion? The solution adopted is the mean between those 
proposed, which ranged from a quarter to three quarters. (2) 
How shall this proportion be reckoned? Must the contraband 
form more than half the cargo in volume, weight, value, or 
freight? The adoption of a single fixed standard gives rise to 



16 GOODS ON NEUTRAL MERCHANT VESSEL 

theoretical objections, and also encourages practices intended to 
avoid condemnation of the vessel in spite of the importance of 
the cargo. If the standard of volume or weight is adopted, the 
master will ship innocent goods sufficiently bulky, or weighty 
in order that the volume or weight of the contraband may be 
less. A similar remark may be made as regards the value or 
the freight. The consequence is that it suffices, in order to justify 
condemnation, that the contraband should form more than half 
the cargo according to any one of the points of view mentioned. 
This may seem severe ; but, on the one hand, proceeding in any 
other manner would make fraudulent calculations easy, and, on 
the other, it may be said that the condemnation of the vessel is 
justified when the carriage of contraband formed an important 
part of her venture, which is true in each of the cases specified. 
(General Report, 1909, Naval War College, p. 89.) 

This point of view was upheld by belligerents gen- 
erally in the World War as equable. It w r as affirmed that 
ignorance could not be rationally affirmed if more than 
half the cargo was contraband. 

In the case of the Hakcm, there was raised in the 
British prize court several questions. These were : 

First, apart from any Resolutions or Articles of the London 
Conference, what was the rule of the law of nations affecting a 
vessel which in the circumstances of this case was carrying a 
cargo consisting wholly of contraband destined for the enemy? 
Secondly, was the Order in Council adopting Art. 40 of the 
Declaration of London so contrary to such a rule that the Order 
was invalid ; or was it sufficiently consistent with such a rule, 
or did it so mitigate the rule in favour of the enemy, that it 
acquired validity, in accordance with the doctrine stated by 
the Privy Council in the Z amor a? Or, thirdly, did the acts of 
the representatives of the various Powers at the Conference, and 
the subsequent action and practice of their States, bring into 
existence, by a sufficiently general consensus of view and assent, 
a new or modified rule of the law of nations upon the subject, to 
which effect ought to be given in their Prize Courts at the 
present day, apart from any Order in Council? 

As to the first, having regard to the decrees and practices of 
the nations for the last 100 years, I should feel bound to declare 
that the rule which prevailed before the relaxation introduced a 
century or more ago should be regarded as valid at the present 
day. This means that the so-called well-established rule in 
favour of a contraband-laden ship contended for by the claimants 
does not exist. In the days of the relaxation referred to, the ship 



THE "HAKAN" 17 

was subject to confiscation in many respects, which were some- 
times called exceptions. It has always been held that if any 
part of the contraband carried belonged to the owner of the 
ship, the ship itself was subject to the penalty of confiscation, 
as was the contraband. According to our most recent writers, 
the vessel suffered if her owner was privy to the carriage of the 
contraband goods, whether they belonged to him or not (see 
Westlake, p. 291 ; Hall, p. 666) . In the present day, even more 
than in the past, the owner must be taken to know either 
directly or through the master how this vessel is laden, or to 
what use she is put. * * * 

Secondly, it follows, from what I have stated, that the pro- 
visions of Art. 40 were a limitation or m tigation of some of the 
rights of the Crown ; and the result of the decision in the Zamora 
is that accordingly the provisions in the Order in Council are 
valid. 

Thirdly, although there is no formal instrument binding as an 
international convention, I think that the attitude and action 
of the most important maritime States before and since 1908 
have been such as to justify the Court in accepting as forming 
part of the law of nations at the present day a rule that neutral 
vessels carrying contraband which by value, we ght, volume or 
freight value, forms more than half the cargo, are subject to 
confiscation, and to condemnation as good and lawful prizes of 
war. ([1916] P. 226.) 

On appeal to the judicial committee of the privy 
council, it was said in 1917 : 

Their Lordships consider that in this state of the authorities 
they ought to hold that knowledge of the character of the goods 
on the part of the owner of the ship is sufficient to justify the 
condemnation of the ship, at any rate where the goods in question 
constitute a substantial part of the whole cargo. ([1918] A. C. 
148.) 

Department of State, 1915. — Early in 1915 Senator 
Stone, of the Senate Committee on Foreign Relations, 
summarized complaints and charges which had come to 
him on the observance of neutrality by the United States. 
These he submitted to the Secretary of State under 20 
heads. The replies to some of these show the attitude of 
the Department of State at the time : 

(4) Submission without protest to British violations of the 
rules regarding absolute and conditional contraband as laid dovm 



18 GOODS ON NEUTRAL MERCHANT VESSEL 

in The Hague conventions, the Declaration of London, and inter- 
national law. 

There is no Hague convention which deals with absolute or 
conditional contraband, and, as the declaration of London is 
not in force, the rules of international law only apply. As to 
the articles to be regarded as contraband, there is no general 
agreement between nations. It is the practice for a country, 
either in time of peace or after the outbreak of war, to declare 
the articles which it will consider as absolute or conditional con- 
traband. It is true that a neutral Government is seriously affected 
by this declaration as the rights of its subjects or citizens may 
be impaired. But the rights and interests of belligerents and 
neutrals are opposed in respect to contraband articles and trade 
and there is no tribunal to which questions of difference may 
be readily submitted. 

The record of the United States in the past is not free from 
criticism. When neutral this Government has stood for a re- 
stricted list of absolute and conditional contraband. As a bellig- 
erent, we have contended for a liberal list, according to our con- 
ception of the necessities of the case. 

The United States has made earnest representations to Great 
Britain in regard to the seizure and detention by the British 
authorities of all American ships or cargoes bona fide destined 
to neutral ports, on the ground that such seizures and detentions 
were contrary to the existing rules of international law. It will 
be recalled, however, that American courts have established 
various rules bearing on these matters. The rule of " continuous 
voyage " has been not only asserted by American tribunals but 
extended by them. They have exercised the right to determine 
from the circumstances whether the ostensible was the real 
destination. They have held that the shipment of articles of 
contraband to a neutral port "to order," from which, as a matter 
of fact, cargoes had been transshipped to the enemy, is corrobo- 
rative evidence ,hat the cargo is really destined to the enemy 
instead of to the neutral port of delivery. It is thus seen that 
some of the doctrines which appear to bear harshly upon neutrals 
at the present time are analogous to or outgrowths from policies 
adopted by the United States when it was a belligerent. The 
Government therefore can not consistently protest against the 
application of rules which it has followed in the past, unless 
they have not been practiced as heretofore. 

(5) Acquiescence without protest to the inclusion of copper and 
other articles in the British lists of absolute contraband. 

The United States has now under consideration the question 
of the right of a belligerent to include " copper unwrought " in 



SENATOR STONE'S QUERIES 19 

its list of absolute contraband instead of in its list of conditional 
contraband. As the Government of the United States has in the 
past placed " all articles from which ammunition is manufac- 
tured " in its contraband list, and has declared copper to be among 
such materials, it necessarily finds some embarrassment in deal- 
ing with the subject. 

Moreover, there is no instance of the United States acquiescing 
in Great Bri ain's seizure of copper shipments. In every case, 
in which it has been done, vigorous representations have been 
made to the British Government, and the representatives of the 
United States have pressed for the release of the shipments. 

(6) Submission without protest to interference with American 
trade to neutral countries in conditional and absolute contraband. 

The fact that the commerce of the United States is interrupted 
by Great Bri lain is consequent upon the superiority of her navy 
on the high seas. History shows that whenever a country has 
possessed that superiority our trade has been interrupted and 
that few articles essential to the prosecution of the war have 
been allowed to reach its enemy from this country. The depart- 
ment's recent note to the British Government, which has been 
made public, in regard to detentions and seizures of American 
vessels and cargoes, is a complete answer to this complaint. 

(8) Submission to British interference with trade in petroleum, 
rubber, leather, wool, etc. 

Petrol and other petroleum products have been proclaimed by 
Great Britain as contraband of war. In view of the absolute 
necessity of such products to the use of submarines, aeroplanes, 
and motors, the United States Government has not yet reached 
the conclusion that they are improperly included in a list of 
contraband. Military operations to-day are largely a question of 
motive power through mechanical devices. It is therefore diffi- 
cult to argue successfully against the inclusion of petroleum 
among the articles of contraband. As to the detention of cargoes 
of petroleum going to neutral countries, this Government has, thus 
far successfully, obtained the release in every case of detention 
or seizure which has been brought to its attention. 

Great Britain and France have placed rubber on the absolute 
contraband list and leather on the conditional contraband list. 
Rubber is extensively used in the manufacture and operation of 
motors and, like petrol, is regarded by some authorities as essen- 
tial to motive power to-day. Leather is even more widely used 
in cavalry and infantry equipment. It is understood that both 
rubber and leather, together with wool, have 1 been embargoed by 
most of the belligerent countries. It will be recalled that the 



20 GOODS ON NEUTKAL MERCHANT VESSEL 

United States has in the past exercised the right of embargo 
upon exports of any commodity which might aid the enemy's 
cause. (Senate Doc. No. 716, 63d Cong., 2d sess.) 

Parliamentary discussion* of contraband, 1916. — The 
British Government in 1916 was much concerned with de- 
termining what should be classed as contraband and there 
were differences of opinion. Mr. Leverton Harris, who 
had been directly associated with the administration, said 
in January, 1916 : 

1 do not think it ought to be assumed that everything which 
reaches Germany or Austria benefits those countries or assists 
them to win the War. That was rather the line, I think, taken 
by the right hon. Gentleman opposite (Sir H. Dalziel). I know 
there are many people in this country who would like to see every 
conceivable commodity stopped from reaching our enemies. Per- 
sonally I do not agree with them. On the contrary, I think 
there are many goods which have reached, and may to-day, be 
reaching Germany and Austria which are doing those countries a 
considerable amount of harm, and giving their Governments a 
great deal of anxiety. It would be very instructive and inter- 
esting if some expert could prepare a list of articles which are 
being imported, or are in the habit of being imported, into enemy 
countries, and classify them according to their military or eco- 
nomic value. Such a list would obviously start with such things 
as shells and other munitions; next you would find the raw ma- 
terials or semi-manufactured articles which have a certain military 
value ; then you might place food supplies, beginning possibly 
with such articles as lard, oil, and other fatty substances which 
are so much needed in Germany at the present moment ; then 
you would come to articles which are used for the purposes of 
manufacture or commerce ; and lastly, you would come to articles 
of pure luxury, the list ending perhaps with something like 
diamond necklaces or very expensive pictures. Everybody is 
agreed that it is essential to do everything we can to stop from 
going to Germany or Austria those articles which will appear at 
the top of the list — that is to say, articles of any military value 
or of any value as an economic food for the population in enemy 
countries. On the other hand, the importation into Germany or 
Austria of such articles as appear at the bottom of the list does 
not prolong the War for one minute; in fact, I suggest that such 
importation does material harm to our enemies and may shorten 
the War. Articles of luxury, such as jewels, and so on, have to 
be paid for like every thing else, and they have to be paid for either 



BEITISH ATTITUDE, 1916 21 

by exchange operations or else in gold or by the export of se- 
curities, with the result that we see at the present time — the very 
great depreciation in the value of the mark. The difficulty one 
has to face is in regard to the classes of articles that fall in the 
centre of the list, such articles, for instance, as tea or cocoa. I 
have changed my mind more than once about tea. Tea, I think, 
does not possess any very great military value, although I under- 
stand it is an alternative ration. It is certainly found that 
whilst we in this country are trying to keep certain classes of 
these goods away from Germany, the German Government also is 
endeavoring to check their sale. The German Government is 
doing all it can to prevent certain classes of articles, which are 
more or less luxuries or not necessities, from coming in from 
abroad and having to be paid for by the export of gold or secur- 
ities. (Parliamentary Debates, Commons [1916], LXXVI1I, p. 
1309.) 

This I will say in conclusion : The vital thing is to succeed in 
stopping German commerce. I believe we have a perfect right 
to do that by every principle of international law. I believe 
it is perfectly legitimate for a belligerent to cut off all commerce 
from his enemy and to destroy and injure it by economic pressure 
exerted to the fullest extent quite as much as by any military 
operation. I am sure it is not only a legitimate and effective 
but that it is also a humane method. I am quite sure that since 
this country has the power to exercise it this country ought 
to do so to the full. With that I think we ought to combine 
absolute respect for the rights of other nations. We ought to set 
an example of law-abiding and just treatment even of the smaller 
nations, and I believe myself that that policy, which I am con- 
vinced is right and in accordance with the best principles of 
British conduct in the past, is also the wisest and effective policy 
if we desire to carry out the main object of all these operations, 
namely, the destruction of the power of the enemy. (Ibid. p. 
1816.) 

British statement, 1916. — Lord Eobert Cecil, Under- 
secretary of State for Foreign Affairs, replying to a 
question in the House of Commons, March 9, 1916, said : 

I have constantly told the House that, in my view, the 
Declaration of London is an instrument which has no binding 
force whatever. The position with regard to this country is 
that certain parts, only certain parts, were selected at the out- 
break of the War by the Government of the day as embodying 
what they believed' to be the principle of international law 



22 GOODS ON NEUTEAL MERCHANT VESSEL 

applicable to belligerent conditions, and believing that to be the 
case they have agreed, and they think it a convenient form, to 
refer to the Declaration of London as embodying it. But the 
Government never intended — at any rate, this Government does 
not intend — to be bound by the Declaration of London, apart 
from and so far as it differs from the principle of international 
law which prevailed at the outbreak of the War. I very much 
doubt, and it is very much doubted by lawyers, whether the 
issue of an Order in Council that the Government intend to adopt 
the Declaration of London would bind the Prize Court, and it 
is a matter of great doubt, in point of fact, if that Declaration 
contained principles and doctrines which were not in accordance 
with the principles of international law. But I can not make it 
too clear whether that is so or not, the policy of the Government 
is to abide by the principles of international law whether they are 
in favour of or against us, and to adhere to them, and them only, 
and it is only so far as the Declaration of London embodies those 
principles that they have any intention of being bound by its 
provisions. (Parliamentary Debates, Commons [1916], 80 H. C. 
Deb. 5 s., p. 1813.) * * * 

If they are changes in principles, they ought not to be made, 
but if they are merely applying the principles to new conditions, 
that is not a change. All English lawyers are profoundly familiar 
with that. It is just as the ordinary growth of case law. You 
have your principle of law which is applied to the particular cir- 
cumstances of each case, and the rulings thereupon being made 
make new definitions of the principle of law, which none the less 
always existed before those decisions. That is what I intended to 
convey, and that is, I think, the only sound view. (Ibid. p. 
1814.) * * * 

I am not quite sure what is meant by this phrase of a " real 
blockade." I do know that such legal opinion as I have been 
able to consult agrees with my own impression that to make any 
Declaration of Blockade, as we should have to do under the 
ordinary rules of international law, defining the limits and show- 
ing where the line of blockade was to be, if we attempted to do 
anything of that kind I think we should find ourselves in much 
greater legal difficulties than we find ourselves in at the present 
time. I do not see that we should get anything whatever by doing 
so. My hon. and gallant Friend said, " Why not apply the doc- 
trine of continuous voyage ? " We have applied it and worked 
it, and it is the very foundation of the whole of the action which 
we have taken. You can not blockade an enemy through a 
neutral country except by the operation of that doctrine. Our 
plan is to arrest all commerce of Germany, whether going in or 



LISTS OF CONTRABAND 23 

coming out, whether it comes through a neutral port or a German 
port; that is the whole object and the whole difficulty of our 
position. We have to discover for certain what is German and 
what is neutral commerce. I can not understand what more you 
can do by blockade. (Ibid. p. 1815.) * * * 

British contraband list, 1916. — On April 13, 1916, the 
British foreign office issued a list of articles declared 
contraband of war, saying: 

The list comprises the articles which have been declared to be 
absolute contraband as well as those which have been declared 
to be conditional contraband. The circumstances of the present 
war are so peculiar that His Majesty's Government consider that 
for practical purposes the distinction between the two classes of 
contraband has ceased to have any value. So large a proportion 
of the inhabitants of the enemy country are taking part, directly 
or indirectly, in the war that no real distinction can now be 
drawn between the armed forces and the civilian population. 
Similarly, the enemy Government has taken control, by a series of 
decrees and orders, of practically all the articles in the list of 
conditional contraband, so that they are now available for Gov- 
ernment use. So long as these exceptional conditions continue 
our belligerent rights with respect to the two kinds of contraband 
are the same, and our treatment of them must be identical. (Par. 
Papers, Misc. No. 12 [1916].) 

This list enumerated about 170 articles arranged alpha- 
betically from " acetic acid and acetates " to " zinc." 

Lists of contraband and categories. — The attempt to 
make lists of articles which may be declared contraband 
of war has in earlier wars, as in the World War, led to 
many controversies. Grotius, in 1625, however, enu- 
merated the categories within which articles absolutely 
contraband, conditional contraband, and free articles 
might fall, though, as previously stated, not using the 
term "contraband." The practice of publishing lists of 
contraband has made it necessary to make frequent addi- 
tions and changes in the list, which make the administra- 
tion of the laws in regard to contraband difficult for the 
belligerent and the observance difficult for the neutral. 

While the Instructions for the Navy of the United 
States Governing Maritime Warfare of June, 1917, 



24 GOODS ON NEUTRAL MERCHANT VESSEL 

referred to a contraband list, it was a classification by 
categories, leaving a reasonable freedom for both bellig- 
erent and neutral. Article 24 of these rules is as follows : 

The articles and materials mentioned in the following para- 
graphs (a), (&), (c), and (d), actually destined to territory 
belonging to or occupied by the enemy or to armed forces of 
the enemy, and the articles and materials mentioned in the 
following paragraph (e) actually destined for the use of the 
enemy Government or its armed forces, are, unless exempted 
by treaty, regarded as contraband. 

(a) All kinds of arms, guns, ammunition, explosives, and 
machines for their manufacture or repair; component parts 
thereof; materials or ingredients used in their manufacture; 
articles necessary or convenient for their use. 

(6) All contrivances for or means of transportation on land, 
in the water or air, and machines used in their manufacture or 
repair ; component parts thereof ; materials or ingredients used 
in their manufacture; instruments, articles or animals necessary 
or convenient for their use. 

(c) All means of communication, tools, implements, instru- 
ments, equipment, maps, pictures, papers and other articles, ma- 
chines, or documents, necessary or convenient for carrying on 
hostile operations. 

(d) Coin, bullion, currency, evidences of debt; also metal, 
materials, dies, plates, machinery or other articles necessary or 
convenient for their manufacture. 

(e) All kinds of fuel, food, foodstuffs, feed, forage, and clothing 
and articles and materials used in their manufacture. 

In a list of articles of contraband of war it is cus- 
tomary to name clothing of military character. In 
modern warfare the important supply for a belligerent 
may be clothing of all kinds, as the supply of one kind 
of clothing may make it possible by substitution to sup- 
ply another to the armed forces because almost any kind 
of clothing may be used for certain services where the 
combatants are not brought into immediate contact. 

British decisions in World War. — The doctrine of con- 
tinuous voyage received attention from time to time in 
the British courts during the World War. The con- 
ditions of commerce were such as to make transportation 
through neutral countries common. An elaborate state- 
ment on the subject was made by Sir Samuel Evans in the 



BRITISH CASES 25 

i 

case of the Kim, the Alfred Nobel, the Bjornsterjne 
Bjornson, and the Fridland, decided in September, 1915. 
He said: 

I have no hesitation in pronouncing that, in my view, the 
doctrine of continuous voyage, or transportation, both in rela- 
tion to carriage by sea and to carriage over land, had become 
part of the law of nations at the commencement of the present 
war, in accordance with the principles of recognized legal deci- 
sions, and with the view of the great body of modern jurists, 
and also with the practice of nations in recent maritime warfare. 

The result is that the court is not restricted in its vision to 
the primary consignments of the goods in these cases to the 
neutral port of Copenhagen ; but is entitled, and bound, to take 
a more extended outlook in order to ascertain whether this 
neutral destination was merely ostensible and, if so, what the 
real ultimate destination was. 

As to the real destination of a cargo, one of the chief tests is 
whether it was consigned to the neutral port to be there delivered 
for the purpose of being imported into the common stock of the 
country. * * * 

The argument still remains good, that if shippers, after the 
outbreak of the war, consign goods of the nature of contraband to 
their own order without naming a consignee, it may be a circum- 
stance of suspicion in considering the question whether the goods 
were really intended for the neutral destination, and to become 
part of the common stock of the neutral country, or whether they 
had another ultimate destination. Of course, it is not conclusive. 
The suspicion arising from this form of consignment during war 
might be dispelled by evidence produced by the shippers. It may 
be here observed that some point was made that in many of the 
consignments the bills of lading were not made out " to order " 
simpliciter, but to branches or agents of the shippers. That 
circumstance does not, in my opinion, make any material differ- 
ence. (The Kim [1915], p. 215; see also 1922 Naval War College, 
p. 50, 96-98.) 

In the case of Borwia in 1918, the question was as to 
the condemnation of 416 tons of coconut oil shipped on 
a Norwegian steamship and seized in a Bristol port. The 
Crown contended that it rested on the claimants who 
were neutral — 

to establish that the destination of the oil was neutral ; and, 
further, that the oil was subject to condemnation on the ground 
1802—29 3 



26 GOODS, ON NEUTRAL MERCHANT VESSEL 

either (1) that it, and the margarine for the manufacture of 
which it was acquired, should, in the circumstances, be deemed 
to have an enemy destination; or (2) that such margarine, when 
manufactured, would to the knowledge of the claimants be con- 
sumed in Sweden in substitution for Swedish butter to be 
supplied to Germany. (The Bdnna- [1918], p. 123; see also 1922 
Naval War College, p. 172.) * * * 

Statistics were given in evidence to show the increase of the 
importation into Sweden of raw materials for margarine and of 
the production and sale of margarine, and to show the simul- 
taneous increase of the export of butter from Sweden to Germany. 
They were interesting, and' beyond doubt they proved that the 
more margarine was made for the Swedes the more butter was 
supplied by them to the Germans ; and that when by reason of the 
naval activity of this country the imports for margarine produc- 
tion became diminished, the Swedish butter was kept for con- 
sumption within Sweden itself and ceased to be sent to the 
enemy. (Ibid. p. 175.) 

Consignments. — In early times the place to which 
goods of the nature of contraband were to go was much 
more a matter of vital concern to a belligerent than the 
person of the consignee. Gradually the person to whom 
the goods are consigned has become a more important 
factor in determining the ultimate destination of such 
goods. During the World War, when the means of 
transportation were so highly developed, there arose 
many questions in regard to consignments. 

In 1921, on appeal, a case was brought before the 
judicial committee of the privy council and Lord Parmoor 
stated : 

The appellants are an import and export company claiming 
on behalf of Enrique Rubio, who was the shipper and consignor 
of certain boxes of Valencia oranges seized on the Norwegian 
steamships Nome, Grove, and Hard-anger, during December, 1915, 
while on voyages from Valencia, in Spain, to Rotterdam, in 
Holland. The amount involved is not considerable, but it was 
stated that the case had been selected as a test case which would 
govern a number of other cases. * * * 

The consignee named in the bill of lading covering the oranges 
shipped on the Nome was A. J. de Graaf, and the consignee 
named in the other two bills of lading, covering the oranges 
shipped on the Grove and Hardanger, was Van Hoeckel. * * * 



ADMIRAL EODGERS'S OPINION 27 

The contention of the appellants is that the destination of 
the voyage was Rotterdam, and that if the voyage had been 
carried through without interruption the oranges would in the 
ordinary course of business have been offered to local dealers 
at public auction, thereby becoming part of the common stock 
of a neutral country, to whatever consumers they might ultimately 
be sold. It was said that if this contention is not accepted, and 
it is held that the anticipation that a large proportion of the 
oranges may go for consumption in Germany is sufficient to 
make them contraband, the consequence is that goods within 
the category of conditional contraband would be liable to seizure 
and condemnation wherever there was anticipation that they might 
be largely sold to enemy customers. * * * 

Their Lordships are unable to hold that the mere fact that 
goods will be offered for sale by auction at the port of arrival 
is in itself conclusive of the innocency of their destination. It 
would appear to them to be too wide a generalization that 
whatever the special conditions may be, the goods could never 
be condemned as contraband, if once it is established that they 
would be offered at public auction in a neutral market. (1921 
A. C. 765.) 

On other grounds it was decided that at the time of 
seizure there was a substantial interest in the consign- 
ment held by a German firm and the judgment of the 
prize court that the oranges were lawful prize waa 
affirmed. 

Position of Admiral Rodgers. — Writing in 1923, Ad- 
miral W. L. Eodgers, United States Navy, took the 
point of view that modern trade systems call for changes., 
in international law. 

Blockade and contraband both operate against the organized^ 
belligerent effort of the hostile government. But new develop- 
ments of international trade and transportation are rendering: 
it possible that adherence to the old rules makes it increasingly 
difficult for a belligerent to disorganize and disrupt the national 
life of the enemy, yet this is a legitimate and humane method. 
of practicing war. 

The basis of principle of the chief rules now current were' 
established before commerce and transportation assumed their 
present great scale through the agency of steam power. The 
size of nations, their power and their complexity have become 
so great that the old rules of contraband and blockade need great 



28 GOODS OIST NEUTRAL MERCHANT VESSEL, 

modification. Present-day practice, however, by certain great 
powers, is in accord with present world conditions, no matter 
how loud conservative outcry may be against current practice. 
Great Britain's position of maritime preponderance for over a 
century has given her a singularly clear insight into the workings 
of international law. As we now wish to rival Great Britain in 
our merchant trade, we can not fail to find our national advantage 
in accepting the views of international law which she has so 
consistently maintained. 

The position of the United States administration of the day, 
representing the nation, has varied according to requirements 
and interest of the nation, (or of special class interests), as it 
was either belligerent or neutral. Other nations vary in the 
same way. • 

In t'me of our neutrality we have stood for neutral rights 
of trade and freedom of the seas. In time of our belligerency 
we have stood for the rigor of the game, extension of contra- 
band lists, continuous voyage, etc. In the Civil War our stand 
on continuous voyage was a forward step for belligerent privi- 
lege. Our views of immunity for private property during that 
war were different from those we urged before and after that 
period when other peoples were at war and the United States was 
neutral. (17 Amer. Jour. Int. Law [Jan. 1923], p. 7.) 

Opinion of Sir Erie Richards. — The late Sir Erie 
Richards, who often during the World War maintained 
before British courts the rights of neutrals, said : 

The particular items which can properly be included in lists of 
contraband must depend to some extent on the particular cir- 
cumstances of each war, but it seems certain that belligerents 
must have the right to determine those lists in the first instance. 
An attempt to enforce fixed lists of contraband, irrespective of 
any future advance in chemistry, was made at the London Con- 
ference; but the agreement there arrived at was found to be 
wholly impracticable, and was abandoned by every one of the 
belligerent Powers. The scheme of the Declaration of London 
was to have three lists : the first of articles which might be 
treated as absolute contraband, the second of articles which 
might be treated as conditional contraband, the third of articles 
which could never be declared contraband at all. But these lists 
proved to be wholly inappropriate, and the war had not long 
been in progress before it was found that some articles in the 
third or free list were essential to the manufacture of munitions : 
raw cotton, rubber and metallic ores, for instance, were found to 
be of such importance in munition making that they were declared 



JUDGE MOORE ON CONTRABAND 29 

to be absolute contraband, although in 1909 it had been agreed 
that they should never be declared contraband at all. The Allies 
refused to be bound by the Declaration in this respect from the 
very first, and the Central Powers soon followed suit. This 
experience teaches us that it is impossible to have lists fixed in 
neutral. (17 Amer. Jour. Int. Law [Jan. 1923], p. 7.) 

Moore on doctrine of contraband. — Judge Moore in 
1923, referring to the practice and arguments made dur- 
ing and subsequent to the World War in regard to abso- 
lute and conditional contraband, said : 

During the recent war there were exigent belligerent measures 
which in effect merged the second category in the first. These 
measures were defended on the ground that the " circumstances " 
of the war were "so peculiar" that "for all practical purposes 
the distinction between the two classes of contraband" had 
" ceased to have value " ; that " so large a proportion of the in- 
habitants of the enemy country " were "taking part in the war, 
directly or indirectly,, that no real distinction " could be drawn 
"between the armed forces and the civilian population ";. that 
" similarly " the enemy government had " taken control, by a 
series of decrees and orders, of practically all the articles in the 
list of conditional contraband, so that they are now available for 
government use " ; and that " so long as these exceptional con- 
ditions" continued, "belligerent rights in regard to 1 the two kinds 
of contraband " were the same and the " treatment of them must 
be identical." 

Probably under the influence of these arguments, and without 
full appreciation of the implication, which they seem to have 
been anxiously designed to convey, that the measures were to be 
regarded as highly emergent and altogether exceptional, it has 
lately been intimated that the distinction, defended and main- 
tained through seons of almost forgotten time, between articles 
absolutely and articles conditionally contraband, has been shown 
by the recent war to be unsound and should no longer be pre- 
served. One writer has indeed gone so far as to assert that 
the distinction " dates from the time when armies were very 
small, and comprised only a very small fraction of the belligerent 
countries," a statement that would have astonished Grotius, 
and that must equally astonish those who are familiar with 
the history, either legal or military, of the wars growing out 
of the French Revolution and the Napoleonic Wars. For rea- 
sons such as these it has been suggested, but not, I believe, by 
any government, that the category of " conditional contraband " 
should now be evacuated and decently interred, and its contents 



30 GOODS ON NEUTRAL MERCHANT VESSEL 

included in the absolute list. The suggestion is startling, since 
its acceptance would at once render illicit practically all trade 
with countries at war, and put in jeopardy much of the trade 
even between countries not at war. 

But we must not permit ourselves to be betrayed by illusions 
of novelty. We do our ancestors grave injustice if we think 
they admitted that a belligerent might capture at sea and con- 
fiscate all commodities destined to his enemy which perchance 
might be used for a military purpose, but believed that bellig- 
erent governments then could not or did not appropriate within 
their own jurisdiction whatever they needed for war. Our 
ancestors were not so hopelessly senseless. They were, on the 
contrary, consciously engaged in a conflict, which has not ceased, 
between belligerent claims to stop trade and neutral claims to 
carry it on. Neutrals denied the right of belligerents to capture 
and confiscate anything but articles primarily useful for war. 
So far as concerned foodstuffs, the defenders of neutral rights, 
while fully aware that armies must and did eat, maintained 
that the noncombatant mouths always vastly outnumbered the 
combatant, so that the preponderant consumption of food was 
ordinarily not hostile. They carried their point, with the single 
concession, the narrowness of which was mutually and perfectly 
understood, that foodstuffs should become contraband if, when 
seized, they were destined for distinctively military use. (Moore, 
International Law and Some Current Illusions, p. 26.) 

Admiral Jellieoe on treatnnent of seized vessels. — 
Admiral Jellieoe, writing of the operations of the British 
fleet, 1914-1916, says : 

The fate of the detained ship was decided in London on receipt 
of the report of examination. As was perhaps natural, the 
sentence on many ships' cargoes pronounced in London was not 
accepted without question from the Fleet, and a good deal of 
correspondence passed with reference to individual ships. We, in 
the Fleet, were naturally very critical of any suspicion of laxity 
in passing, into neutral countries bordering on Germany, articles 
which we suspected might find their way into Germany, and 
constant criticisms were forwarded by me, first to the Admiralty, 
and, later, to the Ministry of Blockade, when that Ministry was 
established. The difficulties with which the Foreign Office was 
faced in regard to neutral susceptibilities were naturally not so 
apparent in the Fleet as to the authorities in London, and 
though many of our criticisms were perhaps somewhat unjusti- 
fiable, and some possibly incorrect, it is certain that in the main 



CONVOY AND CERTIFICATION 31 

they were, of use. Indeed, they were welcomed in London as giv- 
ing the naval point of view. (The Grand Fleet, 1914-1916, p. 76:) 

Convoy and certification. — On April 16, 1918, the 
Dutch Minister of Marine announced to the First Cham- 
ber that " the Government would send a convoy of Gov- 
ernment passengers and goods to the Netherlands East 
Indies." Mr. Balfour in a dispatch to the minister at 
The Hague said on April 25, 1918, that : 

You should let the Netherlands Government know that His 
Majesty's Government of course do not recognise the " right of 
convoy," and that they will exercise the belligerent rights of visit 
and search of merchant vessels' should the Netherlands Govern- 
ment carry out their proposal. (Parliamentary Papers, Misc. 
No. 13 [1918], p. 4.) 

The Dutch, however, continued their preparations and 
on April 29, 1918, the Netherlands Legation informed 
Mr. Balfour that: 

In connection with the decision of the Netherlands Government 
to send a convoy to the Dutch East Indies to relieve military men, 
and to send out Government officials with their families and some 
urgently needed military and other Government goods, I have the 
honour, in accordance with instructions received, to inform your 
Excellency that the said convoy will be composed of the following : 

1. Her Majesty's Hertog Hendrik, accompanied by a coal boat 
requisitioned for that purpose, for the purpose of bunkering 
during the voyage. 

2. A Netherlands merchant ship, transformed into a man-of-war 
according to the rules of the Vllth Convention, 1917, for the 
transport of military men to the Dutch East Indies, having as 
cargo military stores. 

3. A Netherlands merchant ship requisitioned by the Nether- 
lands Government under convoy of the man-of-war mentioned 
sub 1 for the transport of Government passengers with their 
families, and having for cargo exclusively goods of the Nether- 
lands Government destined for the Government of the Dutch 
East Indies. 

The loading of all goods and the embarkation of all passengers 
will be effected under strict supervision of Netherlands Govern- 
ment officials. 

The passengers and their luggage will be submitted to a strict 
examination. 



32 GOODS ON NEUTKAL MERCHANT VESSEL 

No private correspondence may be carried. The ships carry 
neither ordinary nor parcel mail. 

Of the Government goods, the usual manifesto will be pro- 
duced with certificates of origin issued by the Inspector of Import 
Duties. 

I have been directed to add that it is intended to send the 
above convoy about the middle of the month of June, and that 
it will sail round the Scottish Isles and the Cape of Good Hope. 
(Parliamentary Papers, Misc. No. 13 [1918], p. 5.) 

Various delays occurred, but on May 31 a communique 
was issued by the Dutch explaining that: 

Warships will therefore only carry naval personnel and war 
supplies, and (he merchant ships only Government passengers 
with their families and Government goods. It is not intended to 
institute under protection of warships commercial intercourse 
which, without such protection, would not be permitted by the 
belligerents according to their views of commercial liberty of 
neutrals. No mail will be carried. It is obvious that convoy 
commandant would not tolerate any examination of the con- 
voyed ships. According to usage, he will, on meeting belligerent 
warships, permit perusal of cargo documents in his custody by 
commander at latter's request. In fact, those documents will be 
communicated (o Powers concerned before departure from Nether- 
lands. As is customary in these times when despatching warships 
with view to preventing misunderstanding in event of meeting 
belligerent warships, notice has been given to Governments of 
belligerents of the despatch of the convoy. (Ibid. p. 7.) 

On June 7, 1918, in a note to the Dutch minister at 
London Mr. Balfour said : 

2. It was therefore with considerable surprise that J received 
on the 31st ultimo, by telegraph from Sir W. Townley, a trans- 
lation of an official notice published in the Dutch press that 
morning by the Ministry of Marine at The Hague, announcing 
among other things that "the commander of the convoy would 
not tolerate any examination of the convoyed ships." 

3. In the face of this announcement, so made, His Majesty's 
Government feel compelled to reiterate in the most formal manner 
that the right of visit and search which Great Britain, whether 
she was a neutral or a belligerent, has, in conformity with the 
rules of international law, consistently upheld for centuries, is 
not one which she can. abandon. 

4. As the Netherlands Government is well aware, the claim 
that immunity from search is conferred on neutral merchant ves- 



VISIT OF CONVOY 33 

sels by the fact of their sailing under the convoy of a man-of-war 
flying the national flag has never been conceded by this country. 
By the course, therefore, which they are now pursuing, they do 
in fact demand that Great Britain shall abdicate her belligerent 
right to stop contraband trade by the regulated exercise of naval 
force, and, in the middle of a great war, abandon the allied block- 
ade. This is a demand to which Great Britain could not possibly 
accede. (Ibid. p. 8.) 

After a lengthy memorandum the British Government, 
however, waived its " right of visit and search in this 
particular case, as an act of courtesy " of an exceptional 
nature, and the following statement of conditions was 
made : 

(a) A detailed list of all passengers sailing in the convoy, to 
be furnished to His Majesty's Government, none but Dutch 
Government officials and their families being allowed to proceed. 

(6) Full particulars of the cargo on board any merchant vessel 
sailing in the convoy to be supplied in the same way as is now 
done by the Netherlands Oversea Trust in respect of ships under 
their control. 

(o) The Netherlands Government to give a formal guarantee 
that no goods shipped in the convoy are either wholly or in part 
of enemy origin. 

(d) The ships sailing under the Dutch naval flag, including 
the converted liner, not to carry any civilian passengers, nor any 
goods or articles other than warlike stores destined for the 
colonial authorities or forces, of which complete lists should be 
furnished. 

(e) No mails, correspondence, private papers, printed matter, 
or parcels to be carried by any ship in the convoy (except offi- 
cial despatches of the Dutch Government). 

(f) The convoy not to sail until the above stipulated par- 
ticulars and undertakings have been furnished and have been 
found satisfactory by the British authorities. (Ibid. p. 9.) 

The Dutch Legation at London in a note of June 15, 
1918, said : 

In reply to the note you were good enough to address to me 
on the 7th instant, I have the honour to inform you, in accordance 
with instructions received, that the Netherlands Government are 
pleased to see that both the British and the Netherlands Gov- 
ernments agree as to the mode of carrying out the plan for 
the convoy mentioned therein. The conditions stated corresnond 



34 GOODS ON NEUTKAL MERCHANT VESSEL 

almost identically with the intentions communicated in my note 
of the 29th April, last. A complete list of passengers had also 
been prepared, to be sent, together with full particulars of the 
cargoes, to all foreign Legations concerned, as the Netherlands 
Government wish to avoid even any possible impression that 
anything is being concealed. They can not agree with the point 
of view that their readiness to conform to the views of the 
belligerents of the liberty of neutral commerce is difficult to 
reconcile with the whole plan of the convoy. The protection of 
the men-of-war has the advantage of excluding all unnecessary 
delay. The Netherlands Government are fully aware that the 
British Government do not recognise the right of convoy upheld 
by the first-named Government and all other nations, but,' in 
their opinion, this point of international law can be left out of 
account in the present case of a very special sort of convoy 
destined to transport between the mother-country and its colonies 
none but goods for the service of the Government and Government 
passengers, with their families. (Ibid. p. 10.) 

This case involved official Government transport and 
a form of certification which was resorted to as a matter 
of convenience such as might often be found advanta- 
geous by both parties. Mr. Balfour's note of June 7 had 
referred particularly to neutral merchant vessels. 

The " Black Lists."— 

Closely connected with the legal conception of trading with the 
enemy, is the institution of the Statutory or '' Black Lists " initi- 
ated for the first time in 1915 by Great Britain and France. All 
commercial intercourse by British and French citizens with the 
persons or firms included therein was strictly forbidden on ac- 
count of the enemy nationality or hostile associations of such 
persons or firms. By section 1, subsection 3 of the Trading with 
the Enemy (Extension of Powers) Act, 1915, corrections and 
additions of further persons or firms to the Statutory Lists could 
be made by Order in Council, and were in fact so made from time 
to time up to the end of the war. 

In the case of Great Britain, the adoption of the " Black Lists " 
was a distinct departure from the ordinarily and generally ac- 
cepted criteria governing enemy character. The individuals or 
corporations comprised in the lists with whom intercourse by 
British subjects was rendered illegal as involving trading with 
the enemy, were persons or firms who, in the great majority of 
cases, were resident -or carrying on business in neutral countries. 
It would thus appear that, in so far at least as the " Black Lists" 



EXPORT OF CONTRABAND 35 

were concerned, Great Britain was applying the test of nationality, 
and not the traditional criterion of domicile. (Colombos, Law of 
Prize, p. 224.) 

Proposal to prohibit export of contraband. — At the 
meeting of the American Society of International Law in 
1915, Professor Butte proposed that in time of war the 
export of contraband be prohibited by neutrals. He 
argued that: 

Under present conditions, the captor always acts on the pre- 
sumption that a neutral ship bound for an enemy port or a 
neutral port near enemy territory is transporting contraband. 
Except when under convoy, such vessels carrying a mixed cargo 
are presumed guilty. Their innocence must be established by a 
visit and search ; their manifest and other papers have little 
or no probative value. Under modern conditions, with large 
ships and large miscellaneous cargoes, the search of each vessel 
consumes many hours, and not infrequently can not be carried 
out on the high seas at all. The neutral ship is often taken into 
the belligerent's nearest port and detained there for days to be 
unloaded and reloaded, to the great damage and loss of neutral 
shippers and shipowners. So long as neutral states allow the 
export of contraband from their shores, it seems that they have 
no just grounds of complaint against a thorough search of each 
vessel intercepted by the belligerent, however long it may reason- 
ably require and whatever the means that may be reasonably 
necessary. The 'belligerent must obtain for himself the assurance 
that neutral states now fail or refuse to give. Surely the bellig- 
erent would be glad to be relieved of the burden, the liability, and 
the endless difficulties and controversies with neutrals connected 
with the execution of these minute searches, if he had some 
assurance upon which he could rely that no contraband was put 
aboard ship in neutral ports. 

By the enforcement of such prohibitory statutes, neutral mari- 
time commerce would be safer, because the risk of confiscation of 
ships or of condemnation to pay expenses and costs because of 
contraband found on board would be almost entirely eliminated; 
and delays and losses to a shipper of innocent goods in the same 
vessel would be avoided. A shipper of innocent goods can not 
feel safe under the existing rules and the uncertainties as to the 
doctrine of infection. How is he to know when he sends his 
goods on board (unless he owns the ship himself) whether con- 
traband will be carried, and if so, what proportion by value, 
weight, volume and freight of the whole cargo? And who knows 



36 GOODS ON 2TEUTBAL MERCHANT VESSEL. 

what proportion in law infects the ship and renders it liable to 
confiscation? His goods may be thrown out at the first convenient 
port ; and it is incumbent upon him to recover them and to reload 
and reship them, if he can find the space, at his own expense. He 
has no recourse against the captor for the interruption of his 
trade, the damage to himself or his customers, or for other losses 
by reason of the delay. In many cases, especially if his goods 
are perishable, he is fortunate if he recovers a fraction of their 
value. 

Further, the prohibition of the export of contraband from 
neutral states would tend to restrain the belligerent from arbi- 
trarily extending the list of contraband articles. (Amer. Soc. 
Int. Law, Proceedings, 1915, p. 127.) 

Treaty provisions. — The United States has been a party 
to many treaties in which certification in varying forms 
has been recognized as in the treaty with Bolivia, 1858 : 

Article XXII 

To avoid all kinds of vexation and abuse in the examination 
of the papers relating to the ownership of the vessels belonging to 
the citizens of the two contracting parties, they agree that, in 
case one of them should be engaged in war, the ships and vessels 
belonging to the citizens of the other must be furnished with 
sea-letters or passports, expressing the name, property and bulk 
of the ships, as also the name and place of habitation of the 
master and commander of said vessel, in order that it may thereby 
appear that said ship truly belongs to the citizens of one of the 
parties ; they likewise agree that such ships being laden, besides 
the said sea-letters or passports, shall also be provided with cer- 
tificates, containing the several particulars of the cargo, and the 
place whence the ship sailed, so that it may be known whether 
any forbidden or contraband goods be on board the same ; which 
certificates shall be made out by the officers of the place whence 
the ship sailed in the accustomed form ; without such requisites 
said vessels may be detained, to be adjudged by the competent 
tribunal, and may be declared legal prize, unless the said defect 
shall prove to be owing to accident, and supplied by testimony 
entirely equivalent. 

Article XXIII 

It is further agreed that the stipulations above expressed, 
relative to the visiting and examination of vessels, shall apply 
only to those which sail without convoy ; and when said vessels 



CEKTIFICATION OF CARGO 37 

shall be under convoy, the verbal declaration of the commander 
of the convoy, on his word of honor, that the vessels under 
Irs protection belong to the nation whose flag he carries, and, 
when they are bound to an enemy's port, that they have no 
contraband goods on board, shall be sufficient. 

Other treaties contain identical or similar provisions: 
Brazil, 1828; Central America, 1825; Chile, 1832; Colom- 
bia, 1824 and 1846; Dominican Republic, 1867; Ecuador, 
1839; France, 1778 and 1800; Guatemala, 1849; Hayti, 
1864; Mexico, 1831; Netherlands, 1782; Peru, 1851, 1870, 
and 1880; Prussia, 1785 and 1799; Salvador, 1850 and 
1870; Spain, 1795; Sweden, 1783; Venezuela, 1836 and 
1860. 

Certification of cargo. — The treaty provisions just 
mentioned were aimed to secure regularity of papers 
and to avoid unnecessary delays. The papers would to 
some extent facilitate visit and search, but would not 
necessarily exempt the vessels from seizure. The ab- 
sence of such papers would make the vessel liable to be 
declared prize. 

Various propositions have been made from time to 
time in regard to methods of avoiding the inconvenience 
of visit and search. Many of these plans have involved 
placing of additional obligations upon the neutral. Some 
of these contain obligations w 7 hich if not fulfilled by the 
neutral state would give rise to new international dif- 
ferences and would place a part of the burden of the 
war upon the neutral. EA 7 en if a neutral should be 
conscientious in investigating and certifying the cargo 
and character of a vessel about to leave port, such a ves- 
sel might take on cargo after leaving port as has been 
the practice in the days of smuggling when the rewards 
are great. It can not always be presumed that the 
officers investigating and certifying to cargoes would 
not in some countries yield to inducements to make false 
returns. Under the proposed systems the right to visit 
and search was to be reserved, thus placing the neutral 
under a new obligation merely without necessarily 
relieving the vessel from any inconvenience. 



38 GOODS ON NEUTRAL MERCHANT VESSEL 

Professor Hyde in commenting on certain aspects of 
the matters involved said : 

Doubtless latitude should be accorded a belligerent in attempt- 
ing to check traffic in contraband, and to ascertain its existence 
on the high seas. The procedure, however, whereby innocent 
ships are forced to deviate from their courses, put into belliger- 
ent ports and there submit to protracted searches as a means of 
indicating whether they or other vessels are participating in the 
war, or are about to do so, appears to be at variance with the 
demands of justice. 

The British argument and the facts which supported it indi- 
cate why the right of search as exercised in previous wars is in- 
applicable to 1 modern conditions. There is solid reason for the 
attempt to place within the reach of a belligerent, by some other 
process less injurious to innocent shipping, information concern- 
ing the nature of neutral cargoes and the voyages of neutral 
vessels. It is believed that neutral governmental certification of 
ships' papers would offer as reliable assurance as to facts ascer- 
tainable by search as could be furnished by a neutral convoy. 
Moreover, the burden of making such certification might be fully 
compensated by benefits derived from the freedom from annoy- 
ances under the system now prevailing. General approval of a 
procedure establishing reasonable neutral guarantees effected 
through increasing governmental oversight of neutral commerce, 
may cause the exercise of the belligerent rights of visit and 
search to sink into a much desired desuetude. (2 Hyde, Int. Law, 
p. 444.) 

Doctor Lawrence had previously, as Professor Hyde 
indicates, raised this question when after reciting the 
facts as to the cases arising during the South African 
war Doctor Lawrence says : 

It is clear from the bare recital of these facts that in any 
future naval struggle carried on by powerful maritime states the 
position of neutrals possessed of a great mercantile marine will be 
intolerable. The only way of escape is to modify the right of 
search to such an extent that belligerents may obtain reasonable 
assurance of the innocence of harmless cargoes, without inflicting 
on neutrals the ruinous and humiliating process of deviation to a 
belligerent port and a complete overhaul therein of all the vessel 
contains. The continuance of the existing state of things involves 
grave danger of a great extension of any naval war that may 
break out in the near future. It is worthy of consideration 
whether some system of official certificates could not be devised. 



LETTERS OF ASSURANCE 39 

whereby neutral vessels could carry, if they chose, satisfactory 
assurances that their passengers and cargoes consisted only of 
the persons and goods set forth and described in their papers. 
A visiting belligerent officer could then decide whether to effect a 
capture or not, without the need of a preliminary search. (Prin- 
ciples of Int. Law, 4th ed., p. 473.) 

Letters of assurance, 1917. — Lord Robert Cecil, Min- 
ister of Blockade and Undersecretary of State for For- 
eign Affairs, said in the House of Commons, March 27, 
1917: 

There is one other device which I am going to describe to 
the House and which has really been of great assistance to 
the blockade. I should like to describe it, because I believe 
it to be the type of device which ought to be employed in a 
blockade of this description. About the time I was appointed, 
the Consul-General of the United States came to -see me, and 
he pointed out to me : " You say in your diplomatic representa- 
tions to the United States that, after all, British goods suffer 
just as much as American goods from the blockade, and that 
we are not really injuring American goods and American traders 
in any way beyond the injury which the British trader suffers. 
That is not quite right, because the British trader can go to 
your War Trade Department before he makes any arrange- 
ments with regard to the shipping of the goods and he can 
obtain a licence. When he has got his licence he knows that it 
is all right, and he can proceed to secure ship's space and make his 
financial arrangements. He is able to carry on his trade with- 
out fear that it will be stopped at the last minute. That is 
not the case in the United States. Cannot you do something to 
supply that w^tnt?" We thereupon organised a system of Let- 
ters of Assurance as it is called in the States. It is perfectly 
voluntary. Nobody need take out letters of assurance unless 
he wishes to do so, but if he likes to go to our authorities there 
and make inquiries whether a particular ship is likely to meet 
with difficulty, he can obtain from those authorities in America 
letters of assurance, and then the goods, generally speaking, 
unless something exceptional intervenes, go through without 
any trouble or difficulty. That device has been of enormous 
importance in smoothing the difficulties which had before then 
existed with America, and it has been of equal importance in 
enabling us to know exactly what is going on in reference to 
exports from the United States to these neutral countries. It has 
enabled us, without any unfairness or injustice, to regulate the 



40 GOODS ON NEUTBAL MERCHANT VESSEL 

supplies to these neutral countries. (Parliamentary Debates,. 
Commons, 92 H. C. Deb. 5 s., p. 254.) * * * 

I think the visit of the Consul-General to me took place rather 
more than a year ago, and I established this system as soon as it 
could be established. I should think it is about a year ago. It 
has taken some little time to get it in working order. It is 
entirely a voluntary system, but now, though I do not say it is 
universal, it is very largely utilized by traders between the 
United States and neutral countries. In my judgment, as the 
result of these measures and other measures, because, of course, 
they were accompanied by other measures of general tightening-up 
the various devices which before existed, there has been for some 
months past a complete cessation of overseas importation into 
enemy countries. I will give some instances of that in a moment. 
My hon. Friend the Member for Devizes (Mr. Peto) said that we 
had really done nothing, at any rate up to the summer or the 
third quarter of 1916, because we had not succeeded in stop- 
ping the trade of what I will call, roughly, the home produce 
of these neighboring countries. I think he must forget that 
right through the early stages the question of the home produce 
of neighboring neutrals was never raised. The whole question 
which was then discussed was, "Are you really stopping the 
overseas trade and the imports into Germany?" That was ac- 
complished completely, or substantially completely — nothing is 
complete in this world — about June or July of last year. * * * 
I have had some figures prepared. Three or four of them I 
do not think will do any injury to the State, at any rate, some 
of them will not. The form in which these figures have been 
prepared deals with the whole of the neutral countries — that is 
to say, the three Scandinavian countries and Holland, all in a 
lump. After all, that is the real test. If you can show that the 
imports into the whole of these countries have been reduced to 
something about either just over or just under the pre-war 
normal figure, you may fairly conclude that there is no con- 
siderable direct import into the enemy country. * * * 

I felt when we had succeeded in stopping all imports, apart 
from questions of smuggling and things of that kind— all overseas 
imports — we still had not done all that was necessary in order to 
complete the blockade of Germany. There was the question of 
the home produce of the border neutrals. That is a much more 
difficult subject to deal with, as my hon. Friends who have spoken 
will realise. The foundation of a blockade is the prize ; that is 
the sanction. An ordinary blockade entirely depends upon it. 
You can only stop ships and goods going to a blockaded port 
which are and can be condemned in a Prize Court. Where you 



GENERAL CONCLUSIONS 41 

have to deal with a direct blockade, the matter is perfectly 
simple. You merely have to ascertain that the ship is going to 
a blockaded port and put it into a Prize Court, and, if you can 
prove that fact, the ship is condemned as a matter of course. 
The House is aware that that is not the problem with which we- 
have to deal here. We have to deal with an indirect blockade, 
that is,, a blockade through neutral countries. There the posi- 
tion is much more difficult. You can stop and get condemned in a 
Prize Court any goods which are going into the neutral countries, 
the ultimate destination of which is the enemy country. That is 
described in our text books as " continuous voyage," and I believe 
in the American text books it is described as the " doctrine of 
ultimate destination." That is the point. We have acted to the 
full on that doctrine, and have stopped all goods, the ultimate 
destination of which was Germany or any enemy country. (Ibid, 
p. 258.) 

General. — It is evident that the problem of ratio deter- 
mining liability of a vessel to condemnation is not con- 
fined to a single standard but may be value, weight,, 
volume, or freight charges of cargo. Doubt may easily 
arise as to any of these. Lists of named specific articles, 
contraband of war, may not include all articles which 
from their nature might be classed as contraband. The 
enumeration of categories such as food, fuel, clothing 
may be inclusive though less definite. Foods consigned 
to order may be sent to a prize court. Some other con- 
signments may be suspicious and receive similar treat- 
ment. The burden of proof of liability before the World 
War rested, in general, on the captor. Naturally the re- 
lation of ports of neutral states to the means of com- 
munication with belligerent states would influence the 
opinion upon the probable ultimate destination of cargo 
upon a vessel that had been brought-to for visit and 
search. A certificate of a neutral official as to the inno- 
cent character of the goods might not be regarded as 
proof of such character, as other goods might have been 
taken on at sea or elsewhere after sailing. A letter of 
assurance from one belligerent might be a ground of 
suspicion to the other that there was some collusion 
between the shippers and the belligerent. 

1802—29^—4 



42 GOODS ON NEUTKAL MERCHANT VESSEL 

The responsibility for seizure must rest upon the com- 
mander of the visiting vessel of war. While the master 
of a merchant vessel may consider that his vessel is 
exempt from seizure, the commander of the visiting vessel 
of war may have information not possessed by the master 
of a merchant vessel and suspicion justifies taking the 
merchant vessel before the prize court. 

In the situation as stated there are goods of such char- 
acter that they may by well-known processes be converted 
into articles of special use in war and under modern con- 
ditions the immediate consignment to a neutral port may 
have little significance in determining the ultimate des- 
tination. Certification of innocent character and similar 
documents are not recognized as binding in international 
law. The master has good grounds for maintaining 
exemption from seizure, but these are not sufficient to 
preclude seizure. 

solution 

The contentions of the master are not grounds suffi- 
cient to exempt the merchant vessel from liability to 

seizure. 



Situation II 

VISIT AND SEARCH 

Note. — In this situation it is granted that the vessels have a 
legal right to fly the flags mentioned and that all states conform 
in their actions to the rules of international law. 

States X and Y are at war. Other states are neutral. 
A small torpedo boat of X meets a large passenger liner 
bound for a port of Y and known to be privately owned 
by a company of Z and flying the flag of Z. The com- 
mander of the torpedo boat can not search the liner nor 
spare a prize crew, and his duties do not permit him to 
escort the liner into port. He suspects there may be 
some contraband on board and signals the liner to go 
to a named port of X for search. The liner sails away 
and goes to the port of Y and is subsequently met on 
the high sea by the same torpedo boat. 

What is the liability of the liner of Z ? 

SOLUTION 

Under existing international law the movements of 
neutral vessels on the high sea are subject to belligerent 
direction only when under belligerent control by a prize 
crew or escorting vessel and the liner has incurred no 
liability. 

NOTES 

Naval War College discussions. — The subject of visit 
and search has naturally received much consideration at 
this Naval War College. Certain aspects of the subject 
received extended consideration in 1905 (1905 N". W. C. 
International Law Topics, 48-61), and less extended 
discussions have been carried on at other times, while 
frequent references to visit and search have been made 
in other discussions. The conduct of visit and search 
has, however, been particularly prominent in relation to 

43 



44 VISIT AND SEARCH 

other practices in consequence of events in the World 
War, 1914-1918. 

Early understanding. — In a report of the British law 
officers in 1753 the law of capture with other matters 
relating thereto was discussed : 

When two powers are at war, they have a right to make prizes 
of ships, goods, and effects of each other upon the high seas; 
whatever is the property of the enemy may be acquired by capture 
at sea ; but the property of a friend can not be taken, provided he 
observed his neutrality. 

Hence the law of nations has established : 

That the goods of an enemy on board the ship of a friend may 
be taken. 

That the lawful goods of a friend on board the ship of an enemy 
ought to be restored. 

That contraband goods going to the enemy, though the property 
of a friend, may be taken as prize, because supplying the enemy 
with what enables him better to carry on the war is a departure 
from neutrality. . 

By the maritime law of nations universally and immemorially 
received, there is an established method of determination whether 
the capture be, or be not, lawful prize. 

Before the ship or goods can be disposed of by the captor, there 
must be a regular judicial proceeding, wherein both parties may 
be heard, and condemnation thereupon as prize in a court of 
admiralty, judging by the law of nations and treaties. 

The proper and regular court for these condemnations is the 
court of that State to whom the captor belongs. 

The evidence to acquit or condemn, with or without costs or 
damages, must, in the first instance, come merely from the ship 
taken, viz, the papers on board, and the examination on oath of 
the master and other principal officers ; for which purpose there 
are officers of Admiralty in all considerable sea ports of every 
maritime power at war, to examine the captains and other prin- 
cipal officers of every ship brought in as prize, upon general and 
impartial interrogatories. If there do not appear from thence 
ground to condemn as enemy's property, or contraband goods 
going to the enemy, there must be an acquittal ; unless from the 
aforesaid evidence the property shall appear so doubtful, that it is 
reasonable to go into further proof thereof. (2 Marsden, Laws 
and Custom of the Sea, p. 350.) 

The " Zamora" 1916.— This case, which was very f u\\y 
argued and upon which a long opinion was given, went- 



EARLY CASES 45 

on appeal to the judicial committee of the privy council. 
In the opinion Lord Parker, of Wacldington, said : 

It was suggested in argument that a vessel brought into harbor 
for search might, before seizure, be requisitioned under the 
municipal law. This point, if it ever arises, would fall to be 
decided by a court administering municipal law, but from the 
point of view of international law it would be a misfortune if 
the practice of bringing a vessel into harbor for the purpose 
of search — a practice which is justifiable because search at sea 
is impossible under the conditions of modern warfare — were 
held to give rise to rights which could not arise if the search 
took place at sea. ([1916] 2 A. C. 77; see also 1922 N. W. C. 
Int. Law Decisions, p. 126.) 

Case of the " Maria" 1799. — The case of the Maria, 
decided by Sir William Scott in 1799, became almost 
classic as stating the British position on visit and search 
In the beginning Sir William says : 

I state a few principles of that system of law which I take to 
be incontrovertible. 

1st, That the right of visiting and searching merchant ships 
upon the high seas, whatever be the ships, whatever be the 
cargoes, whatever be the destinations, is an incontestable right 
of the lawfully commissioned cruisers of a belligerent nation. 
I say, be the ships, the cargoes, and the destinations what they 
may, because, till they are visited and searched, it does not 
appear what the ships, or the cargoes, or the destinations are ; 
and it is for the purpose of ascertaining these points that the 
necessity of this r.'ght of visitation and search exists. This 
right is so clear in principle, that no man can deny it who admits 
the legality of maritime capture ; because if you are not at 
liberty to ascertain by sufficient inquiry whether there is prop- 
erty that can legally be captured, it is impossible to capture. 
Even those who contend for the inadmissible rule, that free ships 
make free goods, must admit the exercise of this right at least 
for the purpose of ascertaining whether the ships are free ships 
or not. The right is equally clear in practice ; for practice is 
uniform and universal upon the subject. * * * The right 
must unquestionably be exercised with as little of personal harsh- 
ness and of vexation in the mode as possible; but soften it as 
much as you can, it is still a right of force, though of lawful 
force — something in the nature of civil process, where force is 
employed, but a lawful force which cannot lawfully be resisted. 



46 VISIT AND SEARCH 

For it is a wild conceit that wherever force is used, it may be 
forcibly resisted; a lawful force cannot lawfully be resisted. 
The only case where it can be so in matter of this nature, is 
in the state of war and conflict between two countries, where 
one party has a perfect right to attack by force, and the other 
has an equally perfect right to repel by force. But in the 
relative situation of two countries at peace with each other, 
no such conflicting rights can possibly coexist. (1 C. Rob. Ad- 
miralty Reports, p. 340.) 

After a considerable discussion of convoy the judg- 
ment speaks of bringing vessels in for further inquiry 
than can be made at sea. 

Thirdly ; another right accrued, that of bringing in for a more 
deliberate inquiry than could possibly be conducted at sea upon 
such a number of vessels, even those which professed to carry 
cargoes with a neutral destination. * * * 

I take the rule of law to be, that the vessel shall submit to 
the inquiry proposed, looking with confidence to those tribunals 
whose noblest office (and I hope not the least acceptable to 
them) is to relieve, by compensation, inconveniences of this kind, 
where they have happened through accident or error ; and to 
redress, by compensation and punishment, injuries that have 
been committed by design. (Ibid.) 

Bringing seized vessels to port. — Domestic legislation 
(United States Revised Statutes, sees. 4615, 4617) and 
international regulation (Institute of International Law,, 
1913, art. 103) and many national regulations (Russian, 
1895, art. 22; Italy, 1915, art. 11 ; German ordinance, 1909,, 
art. Ill) provide for bringing seized vessels to port. 
These all imply that, either in charge of a prize crew or 
under escort, the vessel which has by visit and search at 
sea been found liable to suspicion of acts which would 
make it subject to prize-court procedure should remain 
under the control of the belligerent until delivered to the 
prize court. None of these regulations provide for send- 
ing in a neutral merchant vessel in order that the search 
for evidence shall be made in port, though if suspicion 
exists or is aroused at the point of visit and search at 
sea it w^ould be justifiable to send the vessel to port for 
further investigation or for confirmatory evidence. 



INSTITUTE OF INTERNATIONAL LAW, 1913 47 

Resolution of the Institute of International Law, 
1913. — In the Oxford Manual of Naval War, drawn up 
and approved by the institute at its Oxford meeting in 
1913, articles 32 and 100 give the general principles in 
regard to visit and search and seizure. These resolutions 
have been translated as follows: 

Article 32. Public and private vessels — Stopping, visit, and 
search. All vessels other than those of the navy, whether they 
belong to the State or to individuals, may be summoned by a 
belligerent warship to stop that a visit and search may be con- 
ducted on board them. 

The belligerent warship, in ordering a vessel to stop, shall 
fire a charge of powder as a summons and, if that warning is not 
sufficient, shall fire a projectile across the bow of the vessel. 
Previously or at the same time, the warship shall hoist its flag, 
above which at night, a signal light shall be placed. The vessel 
answers the signal by hoisting its own flag and by stopping at 
once ; whereupon, the warship shall send to the stopped vessel a 
launch manned by an officer and a sufficient number of men, of 
whom only two or three shall accompany the officer on board the 
stopped vessel. 

Visit consists in the first place in an examination of the ship's 
papers. 

If the ship's papers are insufficient or not of a nature to allay 
suspicion, the officer conducting the visit has the right to proceed 
to a search of the vessel, for which purpose he must ask the 
cooperation of the captain. 

Visit of post packets must, as Article 53 says, be conducted with 
all the consideration and all the expedition possible. 

Vessels convoyed by a neutral warship are not subject to visit 
except in so far as permitted by the rules relating to convoys. 

Article 100. Formalities of seizure. When, after the search 
has been conducted, the vessel is considered subject to capture, 
the officer who seizes the ship must : 

1. Seal all the ship's papers after having inventoried them ; 

2. Draw up a report of the seizure, as well as a short inven- 
tory of the vessel, stating its condition ; 

3. State the condition of the cargo which he has inventoried, 
then close the hatchways of the hold, the chests, and the store- 
room and, as far as circumstances will permit, seal them ; 

4. Draw up a list of the persons found on board ; 

5. Put on board the seized vessel a crew sufficient to retain 
possession of it, maintain order upon it, and conduct it to such 
port as he may see fit. 



48 VISIT AND SEARCH 

If he thinks fit, the captain may, instead of sending a crew 
aboard a vessel, confine himself to escorting it. (Resolutions of 
the Institute of International Law, Scott, Carnegie Endowment, 
pp. 181, 197.) 

Changing conditions of maritime war. — A common con- 
tention is that the change in tonnage, the use of steam, 
the introduction of undersea craft, and other recent modi- 
fications in sea transportation have rendered early mari- 
time laws inoperative. That the manner of application 
of a law may be modified through such changes is usually 
admitted, but that the principle of the law is no longer 
applicable may at the same time be denied. During the 
World War the character of vessels of war and merchant 
vessels varied more widely than in any previous war. 
There were changes in tonnage, speed, stability, method 
of propulsion, use of subsurface craft, and the like. One 
group maintained that as corresponding changes had been 
made or might be made both in the one and the other type 
of craft the belligerent could not justly contend that the 
same principles did not apply in the relations of its ves- 
sels of war to neutral vessels as applied in earlier wars. 
The fact that one type of belligerent vessel of war was 
relatively weaker than a merchant vessel did not give it 
special exceptional belligerent rights as regards a neutral 
vessel, nor did the fact that another type of vessel of war 
might find it particularly hazardous to act in a manner 
formerly sanctioned by the law of Avar give the belliger- 
ent the right to enunciate new principles of law. During 
the World War it was from time to time affirmed by the 
belligerents that the firm intent was to follow in their 
prize courts accepted international law. 

Statement of British attorney general, 1917. — Sir Fred- 
erick Smith in 1917, while British attorney general, 
after reviewing conventions and practice said : 

From these considerations it follows that the commander of 
a belligerent warship may not dispense with the practice of visit 
and search in regard to suspected or r enemy merchantmen. It 
is his duty, before resorting to forcible measures, to ascertain the 



BRITISH ATTORNEY GENERAL, 1917 49 

true character of the vessel, the nationality of the passengers 
and crew on board, and the nature and destination of the cargo. 
(The Destruction of Merchant Ships under International Law, 
p. 16.) 

It is inevitable that in maritime warfare belligerent 
interests may conflict with neutral interests. The rela- 
tions between these interests have gradually become de- 
fined and at the beginning of the World War were con- 
sidered fairly established. Of this the attorney general 
said : » 

When, in naval warfare, the interests of belligerents come into 
conflict with those of neutrals, it does not follow, under the ex- 
isting law of nations, that the former predominate over the latter. 
Neutrals have the right to sail the high seas ; they are entitled 
to use this international highway unmolested, as long as they 
observe the clearly defined obligations of neutrality. Belliger- 
ents' convenience may not override neutral rights. Indeed, it 
may be argued in accordance with the fundamental principles 
of jurisprudence applicable to the society of states that, as war 
is from the point of view of international law an abnormal con- 
dition, the right of neutrals to use the high seas and carry on 
their legitimate commerce even prevails over the claims of belliger- 
ents to make use of this or that portion of the open sea for the 
purposes of their conflict. So long as neutral vessels do not 
encroach within the limited theatre of warlike operations, so long 
as they commit no violation of the rules of neutrality, for ex- 
ample, as to blockade running, contraband trading, or unneutral 
service, they are entitled to be left alone, subject, of course, to 
visit and search in case of suspicion. The observance of their 
obligations necessarily implies the enjoyment of relative rights 
on their part, and a corresponding imposition of indefeasible 
obligations on belligerents. (Ibid. p. 73.) 

J. A. HalVs opinion, 1921. — Referring to the French 
comment on the place of search, J. A. Hall says : 

Except that the last paragraph might imply that the mere fact 
of being in the zone of hostilities is by itself a matter of sus- 
picion sufficient to justify the vessel being diverted for search in 
port, which in some geographical circumstances could scarcely 
be reasonable, the declaration by the French Ministry of Marine 
seems a very fair statement of what the modern right of visit 
and search should be. Apart altogether from the special cir- 
cumstances of the Great War arising out of Germany's illegal 



■50 VISIT AND SEAECH 

practices at sea, the following permanent reasons for this develop- 
ment of the right seem to afford it full justification : 

1. The ship's papers in these days, when telegraphs and other 
means of rapid communication are available for merchants, 
need afford no reliable indication of the destination of the cargo. 

2. The destination of the vessel owing to railways and other 
modern means of land transport is no criterion of the destination 
of the cargo. 

3. The ship's officers may be equally ignorant on this point. 

4. Modern means of communication, while reducing the value 
of evidence from the ship, has enormously increased the powers 
of a belligerent government to obtain information from the 
vessel's port of departure and pass on instructions to its exam- 
ining cruisers. 

5. The size of modern merchant ships enables them to keep at 
sea when weather conditions make even visiting them impossible. 

6. The necessary extension of contraband to cover articles of 
small bulk but of great value for war, together with the huge 
cargo capacity of modern ships, has made concealment easy and 
an adequate examination of such cargo at sea impossible. 

Neutral commerce must always inevitably suffer inconvenience 
from the exercise of belligerent rights in time of war. If these 
rights are to be retained, they must be capable of effective use 
and adaptable to modern conditions, for as Lord Stowell truly 
remarked, " If you are not at liberty to ascertain by sufficient 
enquiry whether there is property that can be legally captured, 
it is impossible to capture," and diversion into port or other 
suitable waters for search is not unduly hard upon neutrals if 
exercised with proper safeguards against abuse. In the first 
place the spot selected for search must not involve an unreason- 
able deviation of the vessel from her voyage. In the second 
place, it seems perfectly clear that nothing in international law 
can justify diversion merely in the hope of discovering by subse- 
quent search evidence of contraband or other noxious trading ; 
there must be some substantial ground, no matter from what 
source it is derived, for suspecting that this particular vessel 
is engaged in such trade, although the evidence may not at the 
moment be sufficient to support a plea for condemnation in the 
prize court. Given these two conditions diversion should be 
permissible in all cases where the weather makes a visit im- 
possible, or where the visit and such search as is possible at sea 
does nothing to dispel the suspicions already reasonably deduced 
from information from external sources. And finally, the neu- 
tral owners affected must be able to obtain damages from the 
belligerent for losses arising from unreasonable diversion or from 



BRITISH VIEW, 1914 51 

unreasonable delay in carrying out the search and in releasing 
the vessel or cargo or bringing them before the prize court. 
(Law of Naval Warfare, 2d ed., p. 266.) 

Visit and search before 1915. — While from the devel- 
opment of law of maritime warfare visit and search has 
been approved, the general rule had been that reason for 
seizure should be evident at the place where the merchant 
vessel was stopped. The preliminary inspection of the 
ship's papers or other circumstances then known might 
furnish grounds for suspicion. Leslie Scott and Alex- 
ander Shaw presented the British view in 1915 : 

In short the right of search is a clearly established principle of 
international law and the points of criticism which have arisen 
are levelled not against the right of search itself, but against the 
particular method in which it has sometimes been exercised. The 
main criticism of Great Britain's present and recent action is that 
neutral ships have been taken into port to be searched. This is 
■.spoken of by some as if it were a new departure. We propose to 
show in the first place that this method of exercising the right 
of search is by no means without ample precedent ; and then to 
discuss the modern conditions of commerce and of warfare which 
have made this particular method of exercising the right impera- 
tive, and the means which have been taken to render this method 
as little onerous as may be to the neutral interests concerned. 

I. It is plain that no belligerent can abandon the right of 
search ; it is clear also that it is of the essence of the right that it 
shall be effective. The principle at stake is the right to make an 
■effective investigation into the character, ownership and destina- 
tion of cargoes. That principle is unchallenged and remains. No 
nation will ever, or can ever, abandon it. To do so would be 
suicidal. At the worst any changes in this respect which are 
charged against the British Government are changes not of prin- 
ciple but changes of method necessary to preserve the principle. 

It is interesting, however, to note that what is spoken of as a 
new departure by Great Britain — the taking of vessels into port 
for search — is really a hoary and time-hallowed way of exercising 
the right. So long ago as 1808 Lord Ellenborough in the case of 
Barker v. Blahes (9 East ,at p. 292) treated the taking of vessels 
into port as a well recognized and established custom. " The 
American " the report of his judgment reads " was at liberty to 
pursue his commerce with France and to be the carrier of goods 
for French subjects ; at the risk indeed of having his voyage inter- 
cepted by the goods being seized ; or of the vessel itself, on board 



52 VISIT ASTD SEARCH 

which they were being detained or brought into British ports for 
the purpose of search." 

It is not surprising to find that the obvious convenience of 
search in a port, even in days before it was so necessary as at the 
present time, led belligerents to adopt this method. 

As was pointed out by Sir Edward Grey in his communication 
of the 10th February to the American Government. " The present 
conflict is not the first in which this necessity has arisen : as long- 
ago as the Civil War the United States found it necessary to take 
vessels into the United States ports in order to determine whether 
the circumstances justified their detention." Sir Edward Grey 
also pointed out that the same need arose during the Russo- 
Japanese War and also during the second Balkan War when 
British vessels were compelled to follow cruisers to some spot 
where the right of search could be more conveniently carried 
out, and that this was ultimately acquiesced in by the British 
Government. 

It is clear then that Great Britain has not done anything 
unprecedented, and a consideration of the conditions of modern 
commerce and of modern naval warfare makes it clear that 
the action of Great Britain in taking vessels to port for search 
is bound, in the nature of things, to be adopted more and more 
widely in future if the right of search is to be preserved at 
all. (Great Britain and Neutral Commerce, p. 4.) 

It is true that prior to the World War vessels were 
taken into port for further search when suspicion justi- 
fied such action but there could not be said to be any 
right to take a vessel into port for search in absence of 
suspicion. Indeed in the case of Barker v. Blokes, to 
which reference is made, there was no ground for draw- 
ing the sweeping generalization in regard to practice of 
visit and search. The award of the judges constituting 
the Permanent Court of Arbitration in the case of the 
Carthage shows the existing law in the pre-war period. 

The ease of the " Carthage" 1912. — The facts of this 
case as stated by the tribunal were as follows : 

The French mail steamer Carthage of the Compagnie Generate 
Transatlantique, in the course of a regular voyage between Mar- 
seilles and Tunis, was stopped on January 16, 1912, at 6 : 30 A. M., 
in the open sea, 17 miles from the coast of Sardinia, by the tor- 
pedo destroyer Agordat of the Royal Italian Navy. 



THE "CARTHAGE" 53 

The commander of the Agordat, having ascertained the presence 
on board the Carthage of an aeroplane belonging to one Duval, 
a French aviator, and consigned to his address at Tunis, declared 
to the captain of the Carthage that the aeroplane in question 
was considered by the Italian Government contraband of war. 

As the transshipment of the aeroplane could not be made, the 
captain of the Carthage received the order to follow the Agordat 
to Cagliari, where he was detained until January 20. (Wilson, 
The Hague Arbitration Cases, p. 363.) 

France and Italy, differing as to the rights of the 
parties in the case, agreed to submit the following ques- 
tion to the Permanent Court of Arbitration at The 
Hague : 

1. Were the Italian naval authorities within their rights in 
proceeding as they did to the capture and temporary seizure of 
the French mail steamer Carthage? (Ibid. p. 353.) 

The Tribunal in its award stated: 

According to the principles universally acknowledged, a bellig- 
erent ship of war has, as a general rule and except for special 
circumstances, the right to stop in the open sea a neutral com- 
mercial vessel and to proceed to visit and search it to assure him- 
self whether it is observing the rules of neutrality, especially 
as to contraband. 

On the other hand, the legality of every act going beyond the 
limits of visit and search depends upon (he existence either of 
contraband trade or of sufficient reasons to believe that there is 
such. * * * 

The information possessed by the Italian authorities was of too 
general a nature and had too little connection with the aeroplane 
in question to constitute sufficient juridical reasons to believe in 
any hostile destination whatever and, consequently, to justify the 
capture of the vessel which was transporting the aeroplane. 
(Ibid. p. 365.) 

After further statement of arguments, the tribunal 
declared and pronounced that: 

The Italian naval authorities were not tvithin their rights in 
proceeding, as they did, to the capture and temporary seizure of 
the French mail steamer " Carthage'' 

American- British exchange of notes, 191^-15. — Almost 
at the beginning of the World War differences arose as 



54 VISIT AN"D SEAEOH 

to the method of exercise of the right of visit and search- 
Many notes were exchanged between belligerents and 
neutrals. In a note of December 26, 1914, to the Ameri- 
can ambassador in London the Secretary of State said: 

The Government of the United Stales readily admits the full 
right of a belligerent to visit and search on the high seas the 
vessels of American citizens or other neutral vessels carrying 
American goods and to detain them tvhen there is sufficient evi- 
dence to justify a belief that contraband articles are in their 
cargoes; hut His Majesty's Government, judging by their own 
experience in the past, must realize that this Government can. 
not without protest permit American ships or American cargoes 
to be taken into British ports and there detained for the purpose 
of searching generally for evidence of contraband, or upon pre- 
sumptions created by special municipal enactments which are 
clearly at variance with international law and practice. (9* 
Special Supplement, A. J. I. L., July, 1915, p. 58.) 

The Secretary of State expressed the opinion that 
observance of accepted law would better serve belliger- 
ents and neutrals, and that a continuance of the British . 
practices might " arouse a feeling contrary to that which 
has so long existed between the American and British^ 
peoples." 

In replying to this note on January 7, 1915, Sir 
EdAvard Grey said: 

It is, however, essential under modern conditions that where 
there is real ground for suspecting the presence of contraband, 
the vessels should be brought into port for examination ; in no < 
other way can the right of search be exercised, and but for this 
practice it would have to be completely abandoned. (Ibid. p. 63.) 

This note gave an extended argument of the compara- 
tive shipments of goods to different countries before and 
after the war, the implication being that such increase 
in shipments was strong presumption of belligerent des- 
tination. In a further reply of February 10, 1915, the 
argument was elaborated, and it was stated : 

The opportunities now enjoyed by a belligerent for obtaining 
supplies through neutral ports are far greater than they were 
fifty years ago, and the geographical conditions of the present 



PLACE OF VISIT AND SEARCH 55 

struggle lend additional assistance to the enemy in carrying out 
such importation. We are faced with the problem of intercepting 
such supplies when arranged with all the advantages that flow 
from elaborate organization and unstinted expenditure. If our 
belligerent rights are to be maintained, it is of the first impor- 
tance for us to distinguish between what is really bona fide trade 
intended for the neutral country concerned and the trade intended 
for the enemy country. Every effort is made by organizers of 
this trade to conceal the true destination, and if the innocent 
neutral trade is to be distinguished from the enemy trade it is 
essential that His Majesty's Government should be entitled to- 
make, and should make, careful enquiry with regard to the des- 
tination of particular shipments of goods even at the risk of some 
slight delay to the parties interested. If such enquiries were not 
made, either the exercise of our belligerent rights would have to 
be abandoned, tending to the prolongation of this war and the in- 
crease of the loss and suffering which it is entailing upon the 
whole world, or else it would be necessary to indulge in indis- 
criminate captures of neutral goods and their detention through- 
out all the period of the resulting prize court proceedings. Under 
the system now adopted it has been found possible to release with- 
out delay, and consequently without appreciable loss to the parties 
interested, all the goods of which the destination is shown as the 
result of the enquiries to be innocent. 

It may well be that the system of making such enquiries is to a 
certain extent a new introduction, in that it has been practised 
to a far greater extent than in previous wars ; but if it is cor- 
rectly described as a new departure, it is a departure which is 
wholly to the advantage of neutrals, and which has been made for- 
the purpose of relieving them so far as possible from loss and 
inconvenience. (Ibid. p. 73.) 

This note maintained that there were precedents for 
the British practice in the records of the United States 
and other states. It also referred to the note of the 
United States of November 7, 1914, in which it was said r 

In the opinion of this Government, the belligerent right of visit 
and search requires that the search should be made on the high 
seas at the time of the visit, and that the conclusion of the search 
should rest upon the evidence found on the ship under investiga- 
tion and not upon circumstances ascertained from external 
sources. (Ibid. p. 74.) 

The British contention was that this was inconsistent 
with practice and with the decision of the Supreme Court: 



56 VISIT AND SEAKCH 

oi : the United States in the case of the Bermuda. Never- 
theless the British note continues : 

It is not impossible that the course of the present struggle 
will show the necessity for belligerent action to be taken in 
various ways which may at first sight be regarded as a de- 
parture from old practice. (Ibid. p. 75.) 

In further support of the tendencies toward new prac- 
tices it maintains : 

No Power during these days can afford during a great war to 
forego the exercise of the right of visit and search. Vessels 
which are apparently harmless merchantmen can be used for 
carrying and laying mines and even fitted to discharge torpedoes. 
Supplies for submarines can without difficulty be concealed under 
other cargo. The only protection against these risks is to visit 
and search thoroughly every vessel appearing in the zone of 
operations, and if the circumstances are such as to render it im- 
possible to carry it out at the spot where the vessel was met 
with the only practicable course is to take the ship to some more 
convenient locality for the purpose. To so do is not to be looked 
upon as a new belligerent right, but as an adaptation of the 
existing right to the modern conditions of commerce. Like all 
belligerent rights, it must be exercised with due regard for 
neutral interests, and it would be unreasonable to expect a neutral 
vessel to make long deviations from her course for this purpose. 
It is for this reason that we have done all we can do to encourage 
neutral merchantmen on their way to ports contiguous to the 
enemy country to visit some British port lying on their line of 
route in order that the necessary examination of the ship's papers, 
and, if required, of the cargo, can be made under conditions of 
convenience to the ship herself. The alternative would be to keep 
a vessel which the naval officers desired to board waiting, it 
might be for days together, until the weather conditions enabled 
the visit to be carried out at sea. (Ibid. p. 76.) 

This note of February 10, 1915, embodies many other 
statements which might give rise to questions such as : 

The principle that the burden of proof should always be 
imposed upon the captor has usually been admitted as a theory. 
In practice, however, it has almost been always otherwise, and 
any student of the prize courts decisions of the past or even of 
modern wars will find that goods seldom escape condemnation 
unless their owner was in a position to prove that their destina- 
tion was innocent. (Ibid. p. 78.) 



WAR ZONE, 1915 57 

War zone proclamation, February ^, 191 5. — The Ger- 
man proclamation of February 4, 1915, declaring that 
as from February 19, in the waters surrounding Great 
Britain and Ireland every enemy merchant ship " will 
be destroyed without its being always possible to avert 
the dangers threatening the crews and passengers on 
that account," shifted attention for a time to German 
practices and the Secretary of State of the United States 
in a communication to the German Government said : 

It is of course not necessary to remind the German Govern- 
ment that the sole right of a belligerent in dealing with neutral 
vessels on the high seas is limited to visit and search, unless 
a blockade is proclaimed and effectively maintained, which this 
Government does not understand to be proposed in this case. 
To declare or exercise a right to attack and destroy any vessel 
entering a prescribed area of the high seas without first certainly 
determining its belligerent nationality and the contraband char- 
acter of its cargo would be an act so unprecedented in naval 
warfare that tnis Government is reluctant to believe that the 
Imperial Government of Germany in this case contemplates it 
as possible. The suspicion that enemy ships are using neutral 
flags improperly can create no just presumption that all ships 
traversing a prescribed area are subject to the same suspicion. 
It is to determine exactly such questions that this Government 
understands the right of visit and search to have been recog- 
nized.. (Ibid. p. 86.) 

Acts based upon the plea of retaliation in disregard of 
accepted laws of maritime war followed and arguments 
varying in weight were presented by all parties. On this 
situation on March 30, 1915, the Secretary of State writes 
to the American ambassador at London for transmission 
to the British Government : 

A belligerent nation has been conceded the right of visit and 
search, and the right of capture and condemnation, if upon 
examination a neutral vessel is found to be engaged in unneutral 
service or to be carrying contraband of war intended for the 
enemy's government or armed forces. It has been conceded the 
right to establish and maintain a blockade of an enemy's ports 
and coasts and to capture and condemn any vessel taken in 
trying to break the blockade. It is even conceded the right to de- 
1802r- 29 5 



58 VISIT AND SEARCH 

tain and take to its own ports for judicial examination all 
vessels which it suspects for substantial reasons to be engaged 
in unneutral or contraband service and to condemn them if the 
suspicion is sustained. But such rights, long clearly defined 
both in doctrine and practice, have hitherto been held to be the 
only permissible exceptions to the principle of universal equality 
of sovereignty on the high seas as between belligerents and 
nations not engaged in war. (Ibid. p. 117.) 

Note of Sir Edward Grey, 1915. — In a note of July 31, 
1915, Sir Edward Grey quotes with approval the follow- 
ing from Sir Samuel Evans's recent decision in the 
British prize court in ,the case of the Zamora: 

I make bold to express the hope and belief that the nations of 
the world need not be apprehensive that Orders in Council will 
emanate from the Government of this country in such violation of 
the acknowledged laws of nations that it is conceivable that our 
prize tribunals, holding the law of nations in reverence, would 
feel called upon to disregard . and refuse obedience to the pro- 
visions of such orders. 

Sir Edward Grey in the same note further says : 

In the note which I handed to Your Excellency on the 24d 
July, I endeavoured to convince the Government of the United 
States, and I trust with success, that the measures that we have 
felt ourselves compelled to adopt, in consequence of the numer- 
ous acts committed by our enemies in violation of the law of 
war and the dictates of humanity, are consistent with the prin- 
ciples of international law. (9 Special Supplement, A. J. I. L., 
July, 1915, p. 164.) 

Americcm-Britisk notes, October °21, 1915, April &£, 
1916. — The American and British positions in regard to 
visit and search were most fully set forth in the long notes 
of October 21, 1915, and April 24, 1916. 

In the American note of October 21, 1915, the Secre- 
tary of State expresses his regret that the hope based 
upon assurances of the allied Governments that the meas- 
ures taken by them would "not infringe unjustifiably 
upon the neutral right of American citizens engaged in 
trade and commerce " had not been realized. The Secre- 
tary of State then enumerated certain conditions which 



METHOD OF SEAEOH 59 

aroused his apprehensions of even greater dangers to 
American rights. 

The method of visit and search received particular 
attention and was quite fully treated in this note. The 
Secretary of State said : 

(3) First. The detentions of American vessels and cargoes 
which have taken place since the opening of hostilities have, it is 
presumed, been pursuant to the enforcement of the Orders in 
Council, which were issued on August 20 and October 29, 1914, 
and March 11, 1915, and relate to contraband traffic and to the 
interception of trade to and from Germany and Austria-Hungary. 
In practice these detentions have not been uniformly based on 
proofs obtained at the time of seizure, but many vessels have 
been detained while search was made for evidence of the contra- 
band character of cargoes or of an intention to evade the non- 
intercourse measures of Great Britain. The question, conse- 
quently, has been one of evidence to support a belief of — in many 
cases a bare suspicion of — enemy destination, or occasionally of 
enemy origin of the goods involved. Whether this evidence 
should be obtained by search at sea before the vessel or cargo is 
taken into port, and what the character of the evidence should be, 
which is necessary to justify the detention, are the points to 
which 1 direct Your Excellency's attention. 

(4) In regard to search at sea, an examination of the instruc- 
tions issued to naval commanders of the United States, Great 
Britain, Russia, Japan, Spain, Germany., and France from 1888 
to the beginning of the present war shows that search in port 
was not contemplated by the Government of any of these coun- 
tries. On the contrary, the context of the respective instructions 
show that search at sea was the procedure expected to be fol- 
lowed by the commanders. All of these instructions impress 
upon the naval officers the necessity of acting with the utmost 
moderation — and in some cases commanders are specifically in- 
structed — in exercising the right of visit and search, to avoid 
undue deviation of the vessel from her course. 

(5) An examination of the opinions of the most eminent text 
writers on the laws of nations shows that they give practically 
no consideration to the question of search in port, outside of 
examination in the course of regular prize court proceedings. 

(6) The assertion by His Majesty's Government that the posi- 
tion of the United States in relation to search at sea is incon- 
sistent with its practice during the American Civil War is based 
upon a misconception. Irregularities there may have been at the 



60 VISIT AND SEAECH 

beginning of that war, but a careful search of the records of this 
Government as to the practice of its commanders shows con- 
clusively that there were no instances when vessels were brought 
into port for search prior to instituting prize court proceedings, 
or that captures were made upon other grounds than, in the 
words of the American note of November 7, 1914, " evidence 
found on the ship under investigation and not upon circumstances 
ascertained from external sources." A copy of the instruction 
issued to American naval officers on August 18, 1862, for their 
guidance during the Civil War, is appended. 

(7) The British contention that "modern conditions" justify 
bringing vessels into port for search is based upon the size, the 
seaworthiness of modern carriers of commerce, and the difficulty 
of uncovering the real transaction in the intricate trade opera- 
tions of the present day. It is believed that commercial trans- 
actions of the present time, hampered as they are by censorship 
of telegraph and postal communication on the part of belligerents, 
are essentially no more complex and disguised than in the wars of 
recent years, during which the practice of obtaining evidence 
in port to determine whether a vessel should be held for prize 
proceedings was not adopted. The effect of the size and sea- 
worthiness of merchant vessels upon their search at sea has been 
submitted to a board of naval experts, which reports that : 

"At no period in history has it been considered necessary to 
remove every package of a ship's cargo to establish the character 
and nature of her trade or the service on which she is bound, 
nor is such removal necessary. * * * 

" The facilities for boarding and inspection of modern ships 
are in fact greater than in former times, and no difference, so 
far as the necessities of the case are concerned, can be seen 
between the search of a ship of a thousand tons and one of 
twenty thousand tons — except possibly a difference in time — for 
the purpose of establishing fully the character of her cargo and 
the nature of her service and destination. * * * This method 
jwould be a direct aid to the belligerents concerned in that it 
would release a belligerent vessel overhauling the neutral from 
its duty of search and set it free for further belligerent opera- 
tions." (10 Special Supplement, A. J. I. L., Oct. 1916, p. 74.) 

The British reply, six months later, April 24, 1916, is 
so important that it deserves consideration. 

4. The question whether the exercise of the right of search can 
be restricted to search at sea was dealt with in Sir E. Grey's 
note of the 7th January, 1915, and His Majesty's Government 
would again draw attention to the facts that information has 



BEITISH POSITION 61) 

constantly reached them of attempts to conceal contraband in-. 
tended for the enemy in innocent packages, and that these attempts 
can only be frustrated by examination of the ship and cargo in. 
port. Similarly, in Sir E. Grey's note of the 10th February, 1915, 
it was pointed out that the size of modern steamships, and their 
capacity to navigate the waters where the allied patrols have to 
operate, whatever the conditions of the weather, frequently ren- 
der it a matter of extreme danger, if not of impossibility, even 
to board the vessels unless they are taken into calm water, for 
the purpose. It is unnecessary to repeat what was said in that 
note. There is nothing that His Majesty's Government could 
withdraw or that the experience of the officers of the allied fleets 
has tended to show was inaccurate. 

5. When visit and search at sea are possible, and when a search 
can be made there which is sufficient to secure belligerent 
rights, it may be admitted that it would be an unreasonable hard- 
ship on merchant vessels to compel them to come into port, and it 
may well be believed that maritime nations have hesitated to 
modify the instructions to their naval officers that it is at sea 
that these operations should be carried out, and that undue 
deviation of the vessel from her course must be avoided. That, 
however, does not affect the fact that it would be impossible, 
under the conditions of modern warfare to confine the rights of 
visit and search to an exanrnation of the ship at the place where 
she is encountered without surrendering a fundamental belligerent 
right. 

6. The effect of the size and seaworthiness of merchant vessels, 
upon their search at sea is essentially a technical question, and 
accordingly His Majesty's Government have thought it well to 
subm't the report of the board of naval experts, quoted by the 
United States Ambassador in paragraph 7 of this note, to Admiral 
Sir John Jellicoe for his observations. The unique experience 
which this officer has gained as the result of more than 18 
months in command of the Grand Fleet renders his opinion of 
pecul'ar value. His report is as follows: 

*' It is undoubtedly the case that the size of modern vessels is 
one of the factors which renders search at sea far more difficult 
than in the days of smaller vessels. So far as I know, it has 
never been contended that it is necessary to remove every package 
of a ship's cargo to establish the character and nature of her 
trade, etc. ; but it must be obvious that the larger the vessel and 
the greater the amount of cargo, the more difficult does exami- 
nation at sea become, because more packages must be removed. 

" This difficulty is much enhanced by the practice of concealing, 
contraband in bales of hay and passengers' luggage, casks, etc.,! 



62 VISIT AXD SEAECH 

and this procedure, which has undoubtedly been carried out, neces- 
sitates the actual removal of a good deal of cargo for examination 
in suspected cases. This removal can not be carried out at sea, 
except in the very finest weather. 

" Further, in a large ship the greater bulk of the cargo ren- 
ders it easier to conceal contraband, especially such valuable 
metals as nickel, quantities of which can easily be stowed in 
places other than the holds of a large ship. 

" I entirely dispute the contention, therefore, advanced in the 
American note, that there is no difference between the search of 
a ship of 1,000 tons and one of 20,000 tons, I am sure that the 
fallacy of the statement must be apparent to anyone who has 
ever carried out such a search at sea. 

" There are other facts, however, which render it necessary to 
bring vessels into port for search. The most important is the 
manner in which those in command of German submarines, in 
entire disregard of international law and of their own prize 
regulations, attack and sink merchant vessels on the high seas, 
neutral as well as British, without visiting the ship and therefore 
without any examination of the cargo. This procedure renders 
it unsafe for a neutral vessel which is being examined by officers 
from a British ship to remain stopped on the high seas, and 
it is therefore in the interests of the neutrals themselves that the 
examination should be conducted in port. 

" The German practice of misusing United States passports in 
order to procure a safe conduct for military persons and agents of 
enemy nationality makes it necessary to examine closely all sus- 
pected persons, and to do this effectively necessitates bringing the 
ship into harbor." 

7. Sir John Jellicoe goes on to say : 

" The difference between the British and the German procedure 
is that we have acted in the way which causes the least dis- 
comfort to neutrals. Instead of sinking neutral ships engaged in 
trade with the enemy, as the Germans have done in so many 
cases in direct contravention of article 113 of their own Naval 
Prize Regulations, 1909, in which it is laid down that the com- 
mander is only justified in destroying a neutral ship which has 
been captured if— 

(a) She is liable to condemnation, and 

(&) The bringing in might expose the warship to danger 

or imperil the success of the "operations in which she 

is engaged at the time — 

we examine them, giving as little inconvenience as modern naval 

conditions will allow, sending them into port only when this 

becomes necessary. 



BRITISH POSITION 63 

•' It must be remembered, however, that it is not the allies alone 
who send a percentage of neutral vessels into port for examina- 
tion, for it is common knowledge that German naval vessels, as 
stated in paragraph 19 of the American note, ' seize and bring 
into German ports neutral vessels bound for Scandinavian and 
Danish ports.' 

"As cases in point, the interception by the Germans of the 
American oil-tankers Llama and Platuria in August last may be 
mentioned. Both were bound to America from Sweden and were 
taken into Swinemunde for examination." 

8. The French Ministry of Marine shares the views expressed 
by Sir J. Jellicoe on the question of search at sea, and has added 
the following statement : 

" Naval practice, as it formerly existed, consisting in search- 
ing ships on the high seas, a method handed down to -us by the 
old navy, is no longer adaptable to the conditions of navigation 
at the present day. Americans have anticipated its insufficiency 
and have foreseen the necessity of substituting some more effective 
method. In the instructions issued by the American Navy Depart- 
ment, under date of June 20, 1898, to the cruisers of the United 
States, the following order is found (clause 13) : 

" ' If the latter (the ship's appers) show contraband of war, the 
ship should be seized ; if not, she should be set free unless by 
reason of strong grounds for suspicion a further search should 
seem to be requisite.' 

" Every method must be modified having regard to the modifica- 
tions of material which men have at their d.sposal, on condition 
that the method remains humane and civilized. 

" The French Admiralty considers that to-day a ship, in order 
to be searched, should be brought to a port whenever the state 
of the sea, the nature, weight, volume, and stowage of the suspect 
cargo, as well as the obscurity and lack of precision of the ship's 
papers, render search at sea practically impossible or dangerous 
for the ship searched. 

" On the other hand, when the contrary circumstances exist, 
the search should be made at sea. 

" Bringing the ship into port is also necessary and justified 
when, the neutral vessel having entered the zone or vicinity 
of hostilities, (1) it is a question, in the interests of the neutral 
ship herself, of avoiding for the latter a series of stoppages 
and successive visits and of establishing once for all her innocent 
character and of permitting her thus to continue her voyage 
freely and without being molested; and (2) the belligerent, within 
his rights of legitimate defence, is entitled to exercise special 
vigilance over unknown ships which circulate in these waters." 
(Ibid, p. 121.) 



64 VISIT AND SEAKCH 

Diplomatic correspondence on the " Bemisse " <m<# £A# 
" Elve" 1917. .- — These two small Dutch vessels while 
being taken into Kirkwall by British authority were 
torpedoed by German submarines. The Dutch authori- 
ties maintained that the vessels' papers were in order 
and their cargoes innocent. The Dutch minister in Lon- 
don in a communication to the British foreign office in- 
closing the detailed statement said, October 26, 1917: 

3. In these circumstances all responsibility for damage re- 
sulting from the detention falls upon the British Government, 
independently of the cause which occasioned the loss. This 
responsibility is all the more unquestionable in view of the 
fact that the British authorities knew beforehand that the 
detention would bring about not only a loss of time, but obliged 
the vessels to navigate the danger zone, where they were ex- 
posed to attacks by German submarines. 

4. In permitting vessels to be taken to British ports without 
accepting the responsibility therefor in the above sense, the 
British Government would make it impossible for Dutch vessels 
to continue to sail to ports of Powers' allied to Great Britain. 

5. The Queen's Government, going by the above, think that 
they may expect your Excellency's Government to compensate 
the shipping company concerned for the losses which they have 
suffered. (British Parliamentary Papers, Misc. No. 1 [1917-1918], 
Cd. 8909, p. 2.) 

In a reply from the British foreign office, November 
16, 1917, there is expressed surprise that the protest and 
claim has not been made against the German Govern- 
ment rather than against the British Government and it 
is presumed that this has not been done, and it is said : 

The situation, therefore, is that, in the opinion of the Nether- 
lands Government, His Majesty's Government are to be held re- 
sponsible because, while they were performing the perfectly le- 
gitimate act of sending a neutral vessel into port for examina- 
tion, an act was committed by their enemies for which no justifi- 
cation whatever is possible ; and the German Government are 
apparently to be held blameless. The right of a belligerent to 
examine and search neutral vessels can not be questioned ; the 
fact that in modern conditions such examination can not take 
place at sea can not be disputed, and the legality of sending such 
vessels into port for examination has been admitted in practice 



BRITISH-DUTCH CORRESPONDENCE 65 

throughout the present war; but the Netherlands Government 
appear to consider that His Majesty's Government ought to 
abandon an established right, because their enemies have seen 
fit to adopt a course of action for which it is not suggested 
that any justification is to be found. 

4. A considerable portion of the enclosures in your note is occu- 
pied with an attempt to prove that it was unnecessary, in the par- 
ticular circumstances of this case, for these vessels to be sent into 
port. I do not think it necessary to go into this point, because, 
apart from any question as to the possibility or desirability of 
discussing the circumstances in which an admitted right might, 
in the discretion of the officers concerned, be waived, it is clear 
that had it not been for the utterly unjustifiable action of the 
German submarines, the sending in of these vessels would have 
caused no loss to the owners, except the slight delay caused 
by such diversion and examination. The damage, in fact, suffered 
was directly caused by the illegal acts of the German sub- 
marines ; for the consequences of those illegal acts His Majesty's 
Government could not in any circumstances be responsible. 

5. Although it is not disputed that the German action in pro- 
claiming vast tracts of sea to be a " barred zone " in which 
neutral vessels will be sunk without warning was utterly illegal, 
to say nothing of its inhumanity, and although His Majesty's Gov- 
ernment are of opinion that the neutral Governments affected 
should have taken such steps as were open to them to resist this 
German attempt to forbid all navigation within the area m 
question, they have, in fact, as the Netherlands Government are 
aware, at some inconvenience to themselves, made arrangements 
whereby neutral vessels whose owners are prepared to accept 
certain reasonable conditions may be examined at certain points 
outside the " danger zone." The vessels now in question had 
made no attempt to obtain these facilities, but preferred to run 
such risks as might be incurred, should it be decided that they 
must be examined in a British port. 

6. In these circumstances His Majesty's Government must de- 
cline to accept any liability of any sort or kind for loss which 
may be caused to neutrals by the illegal action of the German 
Government. I am constrained to say that the action of a neutral 
nation, which apparently accepts without protest the proceedings 
of German submarines in such a case as this, and confines its 
efforts to presenting claims for the loss caused by such action 
to His Majesty's Government, is, in their opinion, inconsistent 
with the obligations of neutrality. Indeed, it is not easy to 
characterise such action by a professedly friendly Power with due 
regard to the customary amenities of diplomatic correspondence. 



66 VISIT AND SEAKCH 

I have only to add that if the owners of these two vessels are 
still of opinion that they have a justifiable claim against His 
Majesty's Government, it is open to them to present it in the 
Prize Court; but if such a claim is made, it will be strenuously 
resisted by the representatives of the Crown. 

I have, etc. 

A. J. Balfour. 

(Ibid. p. 11.) 

The Dutch minister replied on December 17, 1917, 
stating that they were unable to recognize the lawfulness 
of the British action in taking the vessels to Kirkwall, 
but — 

On the contrary, they congest the point of view held by the 
British Government that a belligerent has the right in any cir- 
cumstances to bring into port a neutral vessel, and that if they 
do not avail themselves of this right it is only due to good will on 
their part. In the opinion of the Netherlands Government, the 
right of bringing a vessel into port is inadmissible where, as in 
the case of the vessels Elve and Bernisse, the ships' papers, as 
well as the circumstances in which the vessels are sailing, prove 
distinctly (hat there is no question of transport of contraband. 

The British Government plead that, had it not been for their 
illegal destruction by the Germans, the fact of bringing the vessels 
into port — even if it were contrary to law — would not haye caused 
any damage to their owners beyond loss of time. Now, putting 
aside whatever value this argument might have had in other 
circumstances, it is clear that it can no- be taken into considera- 
tion in the present case, seeing that the British warships were 
aware of the dangers to which the Dutch vessels were exposed by 
the fact of their being brought through the danger zone. As the 
British forces compelled them, nevertheless, to cross this zone, 
the British Government can not, in the opinion of the Nether- 
lands Government, decline responsibility for the damages incurred. 

English as well as American prize law admits in a case of 
illegal cap ure the responsibility of the captor for any loss sus- 
tained from any cause whatever, even that due to force majeure 
or to hazard. 

The Queen's Government consider that a belligerent should, a 
fortioH, be held responsible in the case of illegal capture for any 
loss which they might have foreseen. 

The Netherlands Government, for the reasons set forth above, 
are unable to waive their claim for compensation on behalf of the 
parties interested in the vessels Elve and Bernisse. My Govern- 
ment will not refer to the remarks contained in paragraph 6 of 



DECISION" ON" "BERNISSE*' AND « ELVE » ft^i 

your Excellency's note ; they think these passages, as well as the 
unusual tone of this note, should be attributed to an interpreta- 
tion which is clearly erroneous from the Netherlands point of 
view. (Ibid. p. 12.) 

The British note of December 31, 1917, acknowledged 
the Dutch note and reaffirmed the British position indi- 
cating that the prize court was open to the claimants. , 

The considerations advanced in your note have received the at- 
tentive consideration of His Majesty's Government, but they do 
not affect the essential element in the case, which is that the ves- 
sels in question, having been respectively sunk and damaged by 
the admittedly illegal action of German submarines, the Nether- 
lands Government proceed to present a claim to His Majesty's 
Government and not to the German Government, thus seeking to 
make His Majesty's Government responsible for the illegal action 
of their enemies, while taking no steps to obtain compensation 
from the latter. 

3. His Majesty's Government can in the circumstances only re- 
peat that they are unable to entertain any claim of this nature, 
which it is, however, open to the claimants, as already observed, 
to make in the Prize Court, should they think fit to do so. ■ v 

I have, etc. 

A. J. Balfour. 

(Ibid. p. 14.) i 

Court decision on the " Bernisse " and the " Elve" 
1920. — In this case two small neutral vessels were ordered 
to proceed to Kirkwall. There were placed on board 
each vessel a British officer and some men. The counsel 
for the vessel argued that there was not good ground for 
sending the vessels in and that though there was no 
question as to the right to visit and search there was " no 
right to send the vessels to Kirkwall for examination " 
and that there must be a cause for suspicion before a 
vessel can be sent into a port. The counsel for the captor 
argued that: 

It was impossible, having regard to the German submarine 
peril, to examine any vessel, however small, at sea, and the naval 
authorities were bound to send all vessels into port for search. 
(1923 N. W. C. Int. Law Decisions, p. 123.) 



68 VISIT AND SEARCH 

and that the sending in was merely a prolongation of the 
right of visit and search. The president of the court 
did not rest his decision on this ground but said that: 

It is therefore necessary to consider whether there was any 
reasonable cause for putting the vessels in charge of a British 
officer and crew, and taking them into Kirkwall. In my opinion 
this depends upon the question whether in the circumstances the 
absence of what is called a green clearance formed such a justi- 
fication. Wider questions were argued during the case involving 
the whole question of the rights of a belligerent to send a vessel 
into port for examination instead of examining her at sea, as was 
the practice in former times. I do not think this case raises that 
question, for I am satisfied upon the evidence that the officer who 
stopped the vessels was satisfied that there was nothing connected 
with the papers, or the cargoes of the vessels, which required 
further search to be made, and that no one considered that there 
was any reasonable ground for detaining the vessels any longer, 
or sending them in for examination, except the absence of the 
so-called green clearance. ( [1920] P. 1 ; see also 1923 N. W. O. 
Int. Law Decisions, p. 121.) 

After reviewing the evidence in detail, the president 
said: 

I am therefore of opinion that the absence of a green clearance 
afforded no reasonable ground for sending these vessels to Kirk- 
wall, and as no other reasonable ground was suggested I think 
there must be a decree of restitution with costs. I do not think 
there is any ambiguity or difficulty in the terms of the order in 
council and that it clearly did not apply to this case. (Ibid.) 

British procedure., 1911^-1918. — There were new meth- 
ods introduced by belligerents in order to determine the 
character of neutral trade during the World War. Mr. 
J. A. Salter, chairman of the allied transport executive, 
stated : 

Immediately on the outbreak of war an Examination Service 
was established at Kirkwall, the Downs, Port Said and Gibraltar, 
and the North Sea between the Orkneys and Norway was pa- 
trolled. Merchant vessels were brought into port and examined 
there, for boarding and search at sea were rendered dangerous 
by submarines, and officers afloat could not be kept adequately 
informed of the intricate developments in policy. The Examining 
Officers in the ports acted under direct, and constantly more 



BRITISH PROCEDURE, 1914-1918 69 

stringent, orders from London as to the vessels and cargoes which 
they were to seize or release. (Allied Shipping Control, J. A. 
Salter, p. 99.) 

Soon even this policy gave way to reprisals and to 
acts of interference on a scale not contemplated in any 
rules of maritime warfare. Mr. Salter further said : 

The neutral countries were therefore compelled to adopt inter- 
nal rationing measures, so that the system of official control 
extended over almost the whole world — neutral and belligerent 
alike. The actual privations of some of the neutrals were 
indeed much more serious than those in the Allied countries, no 
doubt partly because their export prohibitions were not suffi- 
cient to prevent supplies slipping across the border under the 
attraction of very high profits. (Ibid. p. 100.) 

Other methods of controlling neutral commerce were 
adopted. 

The first important method by which the economic resources 
of the Allies were used to supplement mere chartering was to 
attach conditions to the supply of bunkers from bunker stations. 

Great Britain and her Allies controlled the main sources of 
supply of bunker coal in Europe and the Middle East, and the 
main bunker deposits on most of the great trade routes of the 
world. This provided a most effective instrument by which to 
induce neutral owners to allot their tonnage to work that was in 
the interests of the Allies, as the following short statement of the 
world's sources of supply and the principal coaling depots will 
show. 

A. Europe. The British Isles represented practically the only 
source of supply during the war, the amount of Westphalian coal 
finding its way whether from Germany or Rotterdam being 
negligible. 

B. Africa and Australasia. Durban, South Australia, New 
Zealand, Newcastle (N. S. W.), and Freemantle. 

D. India. Calcutta. 

E. Far East. North China and Japan, (Ibid. p. 104.) 

Resume. — Early regulations, legislation, and cases 
relating to seizing and bringing vessels to port implied 
that merchant vessels were to be under escort or that a 
prize crew was to be put on board, The bringing in 
was upon grounds of suspicion existing at the time of 



70' -VISIT AND SEARCH 

the Visit in hope that evidence to justify suspicion might 
subsequently be discovered in port. As J. A. Hall said : 

it seems perfectly clear that nothing in international law can 
justify diversion merely in the hope of discovering by subsequent 
search evidence of contraband or other noxious trading. (The 
Law of Naval Warfare, 2d. ed., 1921, p. 267.) 

This position seems to be taken by the tribunal of the 
Permanent Court of Arbitration in the case of the 
Garthage. 
1 The/exchange of notes between belligerent and neutral 
powers and some of the decisions of prize courts during 
the World War, 1914-1918, show attempts in the time 
of war to give new interpretations to accepted principles. 
Many , contentions aimed to extend to the doctrine of 
visit and search the right of a belligerent to interfere 
with a neutral. The extension of the practice of inter- 
ference with neutral commerce was supported by some of 
the belligerents on the ground of the exceptional nature 
of the war, the geographical relations of the belliger- 
ents, the new methods of warfare, and other reasons. 
The United States 'in the note of October 21, 1915, re- 
affirms the statement in the American note of November 
17, 1914, objecting to the bringing in of vessels except 
on " evidence found on the ship under investigation and 
not upon circumstances ascertained from external 
sources." 

When reprisals were resorted to by the belligerents, the 
rights of neutrals and their protests against unlawful 
acts received scant attention. The belligerents prescribed 
or attempted to prescribe entirely new and very burden- 
some rules for the conduct of commerce by neutrals and 
in some instances practically put an end for the time to 
such commerce. Neutral commerce was instructed to 
pursue certain defined routes. The supply of bunkers 
was conditioned on certain pledges as to conduct. Goods 
Were subjected to new inquiries and other restrictions 
were established. It was predicted that in the next war 
there would be no neutrals. 



RESUME 71 

Vessels were routed or required to call at certain ports 
for inspection. This requirement was often stated, with 
an argument that it was for the convenience and safety 
of the neutral merchant vessel. It was pointed out, on 
the other hand, that if each belligerent should maintain 
the right to route neutral vessels, such vessels might be 
instructed to go in opposite directions at the same time 
and might run the risks imposed whatever they might do. 
It was not denied that a vessel of war might at its own 
risk escort a neutral merchant vessel to port if it had 
ground to suspect the merchant vessel of acts which 
would make it liable to condemnation, or a prize crew 
might be put on board under similar conditions for 
similar purposes. The action of the merchant vessel 
would then be under control of the belligerent and not 
merely under instructions of the belligerent. The neu- 
tral merchant vessel could plead that it was acting under 
force majeure if the actual belligerent force was present 
or within range. A simple order from one belligerent 
even if accompanied by a threat as to consequences if not 
carried out would not justify obedience in the opinion 
of the opposing belligerent. If the conditions were 
otherwise, neutral shipping would be in the impossible 
position of being under an obligation simultaneously to 
carry out the orders of two opposing forces for it would 
not be inconceivable that such orders might be broadcast 
by radio to all neutral ships from the vessels of war of 
X and Y. 

If there is a right of visit and search, and that is at 
the present time admitted, there must be conceded the 
opportunity and conditions making its exercise possible. 
This would imply the right to take the visited vessel to 
smooth or safe water, or to escort it to such a place, or to 
retain the custody of the visited vessel till arrival of a 
force adequate to exercise visit and search. 

The sending of a vessel into port under a prize crew or 
escort presupposes a suspicion of liability to prize pro- 



72 VISIT AND SEAECH 

ceedings based on information in possession of the visit- 
ing vessel at the time. Suspicion that all vessels may be 
found liable is not sufficient ground for indiscriminately 
sending in of merchant vessels. 

SOLUTION 

Under existing international law the movements of neu- 
tral vessels on the high seas are subject to belligerent 
direction only when under belligerent control ; by a prize 
crew or escorting vessel and the liner has incurred no 
liability. 



Situation III 

ARMED MERCHANT VESSELS 

States X and Y are at war. Other states are neutral. 
Some of the merchant vessels of states X and Y are armed 
and some are unarmed. 

State A admits armed merchant vessels to its ports on 
the same terms as other merchant vessels. 

State B excludes all armed merchant vessels from its 
ports. 

State C admits armed merchant vessels to its ports 
under the same rules as vessels of war and admits un- 
armed merchant vessels as in the time of peace. 

State X protests against the regulations of states A 
and C. 

State Y protests against the regulations of states B 
and C. 

How far are the protests valid ? 

SOLUTION 

Practice and opinion since 1914 afford some support for 
the position of each neutral and for the protest of each 
belligerent, but the position of state C seems to be gaining 
support. The whole situation shows the need of clear 
determination of the status of armed merchant vessels. 

NOTES 

General. — During and since the World War the status 
of armed merchant vessels has been a subject of much 
difference of opinion. It has been referred to in many 
diplomatic notes and in proclamations. There were 
armed merchant vessels in early times. The prevalence 
of piracy and the use of privateers made arming seem 
necessary for safety. Slave trading was made piracy by 
a British act of Parliament in 1825. Smuggling caused 

1802—29 6 73 



74 ARMED MERCHANT VESSELS 

many complications at about this period and earlier. In 
some remote coasts there was little protection for vessels 
other than such force as they might themselves muster. 
The reasons for arming were mainly for self-protection 
in time of peace and in time of war before privateering 
was declared abolished in 1856. 

Early policy 1 of the United States. — In 1797 President 
Adams said he entertained no doubt — 

of the policy and propriety of permitting our vessels to employ 
means of defense while engaged in a lawful foreign commerce. It 
remains for Congress to prescribe such regulations as will enable 
our seafaring citizens to defend themselves against violations of 
the law of nations, and at the same time restrain them from 
committing acts of hostility against the powers at war. 

An act of June 25, 1798 (1 Stat. L. 572), provided that 
an American merchant vessel " may oppose and defend 
itself against any search, restraint, or seizure which shall 
be attempted upon such vessel." 

Later legislation provided that: 

The Commander and crew of any merchant vessel of the United 
States, owned wholly, or in part, by a citizen thereof, may oppose 
and defend against any aggression, search, restraint, depredation, 
or seizure, which shall be attempted upon such vessel, or upon 
any other vessel so owned, by the commander or crew of any 
armed vessel whatsoever, not being a public armed vessel of some 
nation in amity with the United States, and may subdue and cap- 
ture the same ; and may also retake any vessel so owned which 
may have been captured by the commander or crew of any such 
armed vessel, and send the same into any port of the United 
States. (Act Mar. 3, 1819, 3 Stat. p. 513, temporary act till next 
session of Congress ; made permanent by act Jan. 30, 1823, 3 
Stat. p. 721.) 

Declaration of Paris, 1S56. — The Declaration of Paris, 
1856, provided " Privateering is and remains abolished " 
with the idea that privately armed vessels would no 
longer be used in war. Subsidized vessels, volunteer 
fleets, etc., were at first regarded with suspicion but later 
were generally accepted. 



PKE-WAE, ATTITUDES 75 

Attitude of United States, late nineteenth century. — 
After the Declaration of Paris, 1856, the United States 
was particularly careful to explain that the laws did not 
forbid arming "solely for the purpose of defense and 
gelf -protection." There was, however, much concern 
iest vessels should be armed in the United States and 
subsequently engage in filibustering expeditions, and 
armed vessels were required to give bonds to double 
their value in order to discourage such activities, show- 
ing that arming was not regarded as essential to safety 
of the vessel. The attitude of other states had been 
somewhat similar in regard to arming. 

Pre-war British attitude. — In his speech upon the 
naval estimate on Wednesday, March 26, 1913, Mr. 
Churchill after speaking more particularly of the ma- 
terial of the Navy and of protection against airships 
said: 

I turn to one aspect of trade protection which requires special 
reference. It was made clear at the Second Hague Conference 
that certain of the Great Powers have reserved to themselves 
the right to convert merchant steamers into cruisers, not merely 
in national harbours, but if necessary on the high seas. There 
is now good reason to believe that a considerable number of 
foreign merchant steamers may be rapidly converted into armed 
ships by the mounting of guns. The sea-borne trade of the world 
follows well-marked routes, upon nearly all of which the tonnage 
of the British Mercantile Marine largely predominates. Our food- 
carrying liners and vessels carrying raw material following 
these trade routes would, in certain contingencies, meet foreign 
vessels armed and equipped in the manner described. If the 
British ships had no armament, they would be at the mercy 
of any foreign liners carrying one effective gun and a few rounds 
of ammunition. It would be obviously absurd to meet the con- 
tingency of considerable numbers of foreign armed merchant 
cruisers on the high seas by building an equal number of cruisers. 
That would expose this country to an expenditure of money to 
meet a particular danger altogether disproportionate to the 
expense caused to any foreign Power in creating that danger. 
Hostile cruisers, wherever they are found, will be covered and 
met by British ships of war, but the proper reply to an armed 
merchantman is another merchantman armed in her own defence. 



76 ARMED MERCHANT VESSELS 

This is the position to which the Admiralty have felt it neces- 
sary to draw the attention of leading shipowners. We have 
felt justified in pointing out to them the danger to life and 
property which would be incurred if their vessels were totally 
incapable of offering any defense to an attack. The shipowners 
have responded to the Admiralty invitation with cordiality, and 
substantial progress has been made in the direction of meeting 
it by preparing as a defensive measure to equip a number of 
first-class British liners to repel the attack of armed foreign 
merchant cruisers. Although these vessels have, of course, a 
wholly different status from that of the regularly commissioned 
merchant cruisers, such as those we obtain under the Cunard 
agreement, the Admiralty have felt that the greater part of the 
cost of the necessary equipment should not fall upon the owners, 
and we have decided, therefore, to lend the necessary • guns, to 
supply ammunition, and to provide for the training of members 
of the ship's company to form the guns' crews. The owners 
on their part are paying the cost of the necessary structural 
conversion, which is not great. The British Mercantile Marine 
will, of course, have the protection of the Royal Navy under 
all possible circumstances, but it is obviously impossible to 
guarantee individual vessels from attack when they are scattered 
on their voyages all over the world. No one can pretend to 
view these measures without regret, or without hoping that the 
period of retrogression all over the world which has rendered them 
necessary may be succeeded by days of broader international confi- 
dence and agreement than those through which we are now pass- 
ing. (Parliamentary Debates, Commons [1913], vol. 50, p. 1776.) 

On June 10, 1913, Mr. Churchill (First Lord of the 
Admiralty) said : 

The House will perhaps allow me to take the opportunity of 
clearing up a misconception which appears to be prevalent. 
Merchant vessels carrying guns may belong to one or other of two 
totally different classes. The first class is that of armed mer- 
chant cruisers which on the outbreak of war would be com- 
missioned under the White Ensign and would then be indis- 
tinguishable in status and control from men-of-war. In this 
class belong the Mauretania and Lusitania. The second class 
consists of merchant vessels, which would (unless specially taken 
up by the Admiralty for any purpose) remain merchant vessels 
in war, without any change of status, but have been equipped 
by their owners, with Admiralty assistance, with a defensive 



BRITISH WORLD WAR ATTITUDE 77 

armament in order to exercise their right of beating off attack. 
(Parliamentary Debates, Commons [1913], vol. 53, p. 1431.) 

On June 11, 1913, in reply to a question as to whether 
merchant ships were " equipped for defense only and not 
for attack," Mr. Churchill said : 

Surely these ships will be quite valueless for the purposes of 
attacking armed vessels of any kind. What they are serviceable 
for is to defend themselves against the attack of o.her vessels of 
their own standing. (Parliamentary Debates, Commons, 1913, 
vol. 53, p. 1599.) 

Again on March 17, 1914, Mr. Churchill, speaking for 
the British Government, said of armed merchant ships : 

* * * by the end of 1914-15 seventy ships will have been so 
(two 4.7 guns) armed. They are armed solely for defensive 
purposes. The guns are mounted in the stern and can only fire 
on a pursuer. * * * They are not allowed to fight wi h any 
ships of war. * * * They are, however, thoroughly capable of 
self-defense against an enemy's armed merchantman. (Parlia- 
mentary Debates, Commons, 1914, vol. 59, 1925.) 

Late German attitude. — The counselor of the German 
Imperial Navy Department, Dr. George Schram, said in 
1913 : 

Self-defense is defined as a defense against any unlawful en- 
croachment upon a legal right. (Das Prisenrecht, p. 308.) 

It is doubtful in particular cases in what the criterion of 
forcible resistance consists, especially whether preparations, e. g. : 
equipment of the vessel with suitable armament, would entail 
the legal consequences of resistance. This question must be an- 
swered in the negative. Preparations or the -mere attempt to 
escape do no^ constitute in themselves a forcible defense; they 
do not encroach upon the legal rights of the belligerent. (Ibid, 
p. 310.) 

Early British notes on arrwiSd merchant vessels in 
World War. — Great Britain declared war against Ger- 
many on August 4, 1914. On the same day the British 
charge in Washington sent to the Secretary of State a 
communication in regard to the arming of merchant ves- 
sels in neutral waters, and other notes followed. 



78 ARMED MERCHANT VESSELS 

The British Charge to the Secretary of State 

(No. 252.) British Embassy, 

Washington, August 4, 191 If. 

Sir : In view of the state of war now existing between Great 
Britain and Germany, I have the honour, under instructions from 
His Majesty's Principal Secretary of State for Foreign Affairs, to 
make the following communication to you in respect to the arming 
of any merchant vessels in neutral waters. 

As you are aware it is recognized that a neutral Government is 
bound to use clue diligence to prohibit its subjects or citizens from 
the building and fitting out to order of belligerent vessels intended 
for warlike purposes and also to prevent the departure of any 
such vessels from its jurisdiction. The starting point for the uni- 
versal recognition of this principle was the three rules formulated 
in Article VI of the Treaty between Great Britain and the United 
States of America for the amicable settlement of all causes of 
differences between the two countries, signed at Washington on 
May 8, 1871. These rules, which His Majesty's Government and 
the United States Government agreed to observe as between them- 
selves in future, are as follows : 

"A neutral Government is bound — 

" First. To use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry on 
war against a Power with which it is at peace; and also to use 
like diligence to prevent the departure from its jurisdiction of 
any vessel intended to cruise or carry on war as above, such 
vessel having been specially adapted, in whole or in part, within 
such jurisdiction to warlike use. 

" Secondly. Not to permit or suffer either belligerent to make 
use of its ports or waters as the base of naval operations against 
the other, or for. the purpose of the renewal or augmentation of 
military supplies or arms, or the recruitment of men. 

" Thirdly. To exercise due diligence in its own ports and waters, 
and, as to all persons within its jurisdiction, to prevent any 
violation of the foregoing obligations and duties." 

The above rules may be said to have acquired the force of gen- 
erally recognized rules of International Law, and the first of 
them is reproduced almost textually - in Article VIII of The 
Hague Convention Number 13 of 1907 concerning the Rights and 
Duties of Neutral Powers in case of Maritime Warfare, the 
principles of which have been agreed to by practically every 
maritime State. 

It is known, however, that Germany, with whom Great Britain 
is at war, favours the policy of converting her merchant vessels 



BRITISH WORLD WAR ATTITUDE 79 

into armed ships on the High Seas, and it is probable, there- 
fore, that attempts will be made to equip and despatch mer- 
chantmen for such conversion from the ports of the United States. 

It is probable that, even if the final completion of the measures 
to fit out merchantmen to act as cruisers may have to be effected 
on the High Seas, most of the preliminary arrangements will 
have been made before the vessels leave port, so that the warlike 
purpose to which they are to be put after leaving neutral waters 
must be more or less manifest before their departure. 

In calling your attention to the above mentioned " Rules of 
the Treaty of Washington " and The Hague Convention, I have 
the honour to state that His Majesty's Government will accord- 
ingly hold the United States Government responsible for any 
damages to British Trade or shipping, or injury to British inter- 
ests generally, which may be caused by such vessels having been 
equipped at, or departing from, United States ports. 

I have, etc., 

COLVILLE BARCLAY. 

(Spec. Sup. Am. Jour. Int. Law, vol. 9, July, 1915, p. 222.) 



The British Charge (V Affaires to the Secretary of State 

(No. 259.) British Embassy, 

Washington, August 9, 1914- 

Sir : With reference to my note No. 252 of the 4th instant, I 
have the honour to inform you that I have now received instruc- 
tions from Sir Edward Grey to make a further communication to 
you in explanation of the position taken by His Majesty's Gov- 
ernment in regard to the question of armed merchantmen. 

As you are no doubt aware, a certain number of British 
merchant vessels are armed, but this is a precautionary measure 
adopted solely for the purpose of defence, which, under existing 
rules of international law, is the right of all merchant vessels 
when attacked. 

According to British rule, British merchant vessels can not be 
converted into men-of-war in any foreign port, for the reason 
that Great Britain does not admit the right of any Power to 
do this on the High Seas. The duty of a neutral to intern or 
order the immediate departure of belligerent vessels is limited 
to actual and potential men-of-war, and in the opinion of His 
Majesty's Government, there can therefore be no right on the 
part of neutral Governments to intern British armed merchant 
vessels, which can not be converted into men-of-war on the 



80 ARMED MERCHANT VESSELS 

High Seas, nor to require them to land their guns before 
proceeding to sea. 

On the other hand, the German Government have consistently 
claimed the right of conversion on the High Seas, and His 
Majesty's Government therefore maintain their claim that ves- 
sels which are adapted for conversion and under German rules 
may be converted into men-of-war on the High Seas should be 
interned in the absence of binding assurances, the responsibility 
for which must be assumed by the neutral Government concerned, 
that they shall not be so converted. 

I have, etc., 

Colville Barclay. 

(Ibid. p. 223.) 



The British Charge to the Secretary of State 

British Embassy, 
Washmgton, August 12, 1914. 
Sir: With reference to my notes Nos. 252 and 259 of August 4 
and August 9, respectively, stating and explaining the position 
taken up by His Majesty's Government in regard to the question 
of armed merchantmen, I have the honor to state that I have now 
been informed by Sir Edward Grey that exactly similar instruc- 
tions were at the same time issued by him to His Majesty's 
representatives in practically all neutral countries to address the 
same communications to the respective Governments to which they 
were accredited. 

Colville Barclay. 
(Ibid. p. 224.) 

Reply of the United Stc&tes. — The United States in a 
note of August 19, 1914, reviewed briefly the British 
notes and showed that France and Russia had upheld the 
right of conversion on the high seas as well as Austria 
and Germany, while Great Britain and Belgium had 
opposed this right at The Hague Conference in 1907. 
Great Britain had later maintained that there was no 
rule of international law on the subject. Referring to 
the last clause of the British note of August 4, 1914, in 
which the responsibility of the United States was 
declared, the American note said : 

It seems obvious therefore that by neither the terms nor the 
interpretation of the provisions of the treaties on this point is the 



ASSURANCES, 1914 81 

United States bound to assume the attitude of an insurer. Con- 
sequently the United States disclaims as a correct statement of 
its responsibility the assertion in your note that " His Majesty's 
Government will accordingly hold the United States Government 
responsible for any damages to British trade or shipping, or injury 
to British interests generally, which may be caused by such ves- 
sels having been equipped at, or departing from, United States 
ports." (Ibid. p. 228.) 

British assurances, 191 4- — Sir Cecil Spring-Rice wrote 
to the Secretary of State, August 25, 1914 : 

(No. 289.) British Embassy, 

Washington, August 25, 1914- 

With reference to Mr. Barclay's notes Nos. 252 and 259 of the 
4th and 9th of August, respectively, fully explaining the position 
taken up by His Majesty's Government in regard to the question 
of armed merchantmen, I have the honour, in view of the fact that 
a number of British armed merchantmen will now be visiting 
United States ports, to reiterate that the arming of British mer- 
chantmen is solely a precautionary measure adopted for the pur- 
pose of defense against attack from hostile craft. 

I have at the same time been instructed by His Majesty's Prin- 
cipal Secretary of State for Foreign Affairs to give the United 
States Government the fullest assurances that British merchant 
vessels will never be used for purposes of attack, that they are 
merely peaceful traders armed only for defence, that they will 
never fire unless first fired upon, and that they will never under 
any circumstances attack any vessel. (Ibid., p. 230.) 

To this the State Department replied as follows : 

Department of State, 
Washington, August 29, 1914. 
I have the honor to acknowledge the receipt of your note of the 
25th instant in which, referring to previous correspondence, you 
state that, in view of the fact that a number of British armed 
merchantmen will now be visiting United States ports, you desire 
to reiterate that the arming of British merchantmen is solely a 
precautionary measure adopted for the purpose of defence against 
attack from hostile craft. You add that you have been instructed 
by His Majesty's Principal Secretary of State for Foreign Affairs 
to give the Government of the United States the fullest assur- 
ances that British merchant vessels will never be used for pur- 
poses of attack, that they are merely peaceful traders armed only 
for defence, that they will never fire unless first fired upon, and 



82 AEMED MEKCHANT VESSELS 

that they will never under any circumstances attack any vessel. 
(Ibid. p. 230.) 

The Adriatic, armed with four guns, and the Mention, 
armed with six guns, had entered ports of the United 
States and the American Government foresaw complica- 
tions in maintaining neutrality and so notified British 
authorities. The British ambassador states on September 
4, 1914 : 

I have now received a reply from Sir Edward Grey, in which 
he informs me that His Majesty's Government hold the view that 
it is not in accordance with neutrality and international law to 
detain in neutral ports merchant vessels armed with purely de- 
fensive armaments. But in view of the fact that the United 
States Government is detaining armed merchant vessels prepared 
for offensive warfare, and in order to avoid the difficult questions 
of the character and degree of armament which would justify 
detention, His Majesty's Government have made arrangements 
for landing the guns of the Merrion, the Adriatic having already 
sailed before the orders reached her. In the case of the latter 
ship, the passenger list and cargo had proved that she was pro- 
ceeding to sea on ordinary commercial business. These and other 
papers relative to the case will be duly communicated to your 
Department. 

This action has been taken without prejudice to the general 
principle which His Majesty's Government have enunciated and to 
which they adhere. (Ibid. p. 231.) 

The British position was further set forth in memo- 
randa of September 9, 1914 : 

A merchant vessel armed purely for self-defence is therefore 
entitled under international law to enjoy the status of a peace- 
ful trading ship in neutral ports and His Majesty's Government 
do not ask for better treatment for British merchant ships in 
this respect than might be accorded to those of other Powers. 
They consider that only those merchant ships which are intended 
for use as cruisers should be treated as ships of war and that 
the questions whether a particular ship carrying an armament 
is intended for offensive or defensive action must be decided by 
the simple criterion whether she is engaged in ordinary com- 
merce and embarking cargo and passengers in the ordinary way. 
If so, there is no rule in international law that would justify 
such vessel even if armed being treated otherwise than as a 
peaceful trader. 



MEMORANDUM, SEPTEMBER 19, 1914 83 

In urging this view upon the consideration of the United States 
Government the British Ambassador is instructed to state that it 
is believed that German merchant vessels with offensive armament 
have escaped from American ports, especially from ports in South 
America to prey upon British commerce in spite of all the pre- 
cautions taken. German cruisers in the Atlantic continue by one 
means or another to obtain ample supplies of coal shipped to them 
from neutral ports, and if the United States Government take the 
view that British merchant vessels which are bona fide engaged 
in commerce and carry guns at the stern only are not permitted 
purely defensive armament, unavoidable injury may ensue to 
British interests and indirectly also to United States trade wiiich 
will be deplorable. (Ibid. p. 233.) 

Memorandum of State Department, September 19, 
1914,. — The attitude of- the Department of State was 
made known in a memorandum aimed to set forth physi- 
cal bases for determination of the intent of arming mer- 
chant vessels. 

THE STATUS OF ARMED MERCHANT VESSELS 



A merchant vessel of belligerent nationality may carry an arma- 
ment and ammunition for the sole purpose of defense without 
acquiring the character of a ship of war. 

B 

The presence of an armament and ammunition on board a mer- 
chant vessel creates a presumption that the armament is for 
offensive purposes, but the owners or agents may overcome this 
presumption by evidence showing that the vessel carries arma- 
ment solely for defense. 

C 

Evidence necessary to establish the fact that the armament is 
solely for defense and will not be used offensively, whether the 
armament be mounted or stowed below, must be presented in each 
case independently at an official investigation. The result of the 
investigation must show conclusively that the armament is not 
intended for, and will not be used in, offensive operations. 

Indications that the armament will not be used offensively are: 

1. That the caliber of the guns carried does not exceed six 
inches. 

2. That the guns and small arms carried are few in number. 



84 ARMED MERCHANT VESSELS 

3. That no guns are mounted on the forward part of the vessel. 

4. That the quantity of ammunition carried is small. 

5. That the vessel is manned by its usual crew, and the officers 
are the same as those on board before war was declared. 

6. That the vessel intends to and actually does clear for a port 
lying in its usual trade route, or a port indicating its purpose to 
continue in the same trade in which it was engaged before war 
was declared. 

7. That the vessel takes on board fuel and supplies sufficient 
only to carry it to its port of destination, or the same quantity 
substantially which it has been accustomed to take for a voyage 
before war was declared. 

8. That the cargo of the vessel consists of articles of commerce 
unsuited for the use of a ship of war in operations against an 
enemy. 

9. That the vessel carries passengers who are as a whole un- 
fitted to enter the military or naval service of the belligerent 
whose flag the vessel flies, or of any of its allies, and particularly 
if the passenger list included women and children. 

10. That the speed of the ship is slow. 

D 

Port authorities, on the arrival in a port of the United States of 
an armed vessel of belligerent nationality, claiming to be a mer- 
chant vessel, should immediately investigate and report to Wash- 
ington on the foregoing indications as to the intended use of the 
armament, in order that it may be determined whether the evi- 
dence is sufficient to remove the presumption that the vessel is, 
and should be treated as, a ship of war. Clearance will not be 
granted until authorized from Washington, and the master will 
be so informed upon arrival. 

' E 

The conversion of a merchant vessel into a ship of war is a 
question of fact which is to be established by direct or circum- 
stantial evidence of intention to use the vessel as a ship of war. 
(Ibid. p. 234.) 

German attitude. — Mr. Gerard transmitted a note from 
the German foreign office on October 15 which referred 
to the memorandum of September 19, 1914. This note 

says: 

It is a question whether or not ships thus armed should be 
admitted into ports of a neutral country at all. Such ships, 



PKOPOSALS, JANUARY 18, 1916 85 

in any event, should not receive any better treatment in neutral 
ports than a regular warship, and should be subject as least to the 
rules issued by neutral nations restricting the stay of a warship. 
If the Government of the United States considers that it fulfills 
its duty as a neutral nation by confining the admission of armed 
merchant ships to such ships as are equipped for defensive 
purposes only, it is pointed out that so far as determining the war- 
like character of a ship is concerned, the distinction between 
the defensive and offensive is irrelevant. The destination of a 
ship for use of any kind in war is conclusive, and restrictions 
as to the extent of armament afford no guarantee that ships armed 
for defensive purposes only will not be used for offensive purposes 
under certain circumstances. (Ibid. p. 238.) 

On November 7 the United States expressed its dissent 
from the German point- of view, reaffirmed the princi- 
ples of the memorandum of September 19 and expressed 
" disapprobation of a practice which compelled it to pass 
upon a vessel's intended use " and further stated : 

As a result of these representations no merchant vessel with 
armaments have visited the ports of the United States since the 
10th of September. In fact from the beginning of the European 
war but two armed private vessels have entered or cleared from 
ports of this country and as to these vessels their character as 
merchant vessels was conclusively established. 

Please bring the foregoing to the attention of the German 
Government and in doing so express the hope that they will also 
prevent their merchant vessels from entering the ports of the 
United States carrying armaments even for defensive purposes 
though they may possess the right to do so by the rules of inter- 
national law. (Ibid. p. 239.) 

Proposals of Department of State y January 18, 1916. — 
The treatment of armed merchant vessels became a 
matter of discussion in Congress and elsewhere, and fur- 
ther correspondence. In an informal and confidential 
letter the Department of State made certain propositions, 
as follows : 

In order to bring submarine warfare within the general rules 
of international law. and the principles of humanity without 
destroying its efficiency in the destruction of commerce, I believe 
that a formula may be found which, though it may require slight 
modifications of the practice generally followed by nations prior 



86 ARMED MERCHANT VESSELS 

to the employment of submarines, will appeal to the sense oi 
justice and fairness of all the belligerents in the present war. 

Your excellency will understand that in seeking a formula or 
rule of this nature I approach it of necessity from the point of 
view of a neutral, but I believe that it will be equally efficacious 
in preserving the lives of all noncombatants on merchant vessels 
of belligerent nationality. 

My comments on this subject are predicated on the following 
propositions : 

1. A noncombatant has a right to traverse the high seas in 
a merchant vessel entitled to fly a belligerent flag and to rely 
upon the observance of the rules of international law and prin- 
ciples of humanity if the vessel is approached by a naval vessel 
of another belligerent. 

2. A merchant vessel of enemy nationality should not be 
attacked without being ordered to stop. 

3. An enemy merchant vessel when ordered to do so by a 
belligerent submarine, should immediately stop. 

4. Such vessel should not be attacked after being ordered to 
stop unless it attempts to flee or to resist, and in case it ceases 
to flee or resist, the attack should discontinue. 

5. In the event that it is impossible to place a prize crew 
«on board of an enemy merchant vessel or convoy it into port, the 

vessel may be sunk, provided the crew and passengers have been 
removed to a place of safety. 

In complying with the foregoing propositions which, in my 
opinion, embody the principal rules, the strict observance of 
which will insure the life of a noncombatant on a merchant 
vessel which is intercepted by a submarine, I am not unmindful 
of the obstacles which would be met by undersea craft as 
commerce destroyers. 

Prior to the year 1915 belligerent operations against enemy 
commerce on the high seas had been conducted with cruisers 
carrying heavy armaments. Under those conditions international 
law appeared to permit a merchant vessel to carry an armament 
for defensive purposes without losing its character as a private 
commercial vessel. This right seems to have been predicated on 
the superior defensive strength of ships of war, and the limitation 
of armament to have been dependent on the fact that it could not 
be used effectively in offense against enemy naval vessels, while it 
could defend the merchantmen against the generally inferior 
armament of piratical ships and privateers. 

The use of the submarine, however, has changed these rela- 
tions. Comparison of the defensive strength of a cruiser and a 
submarine shows that the latter, relying for protection on its 



REPLIES TO PROPOSALS 87 

power to submerge, is almost defenseless in point of construc- 
tion. Even a merchant ship carrying a small caliber gun would 
be able to use it effectively for offense against a submarine. 
Moreover, pirates and sea rovers have been swept from the main 
trade channels of the seas, and privateering has been abolished. 
Consequently, the placing of guns on merchantmen at the present 
day of submarine warfare can be explained only on the ground 
of a purpose to render merchantmen superior in force to sub- 
marines and to prevent warning and visit and search by them. 
Any armament, therefore, on a merchant vessel would seem to 
have the character of an offensive armament. 

If a submarine is required to stop and search a merchant 
vessel on the high seas and, in case it is found that she is of 
enemy character and that conditions necessitate her destruc- 
tion, to remove to a place of safety all persons on board, it 
would not seem just or reasonable that the submarine should be 
compelled, while complying with these requirements, to expose 
itself to almost certain destruction by the guns on board the 
merchant vessel. 

It would, therefore, appear to be a reasonable and reciprocally 
just arrangement if it could be agreed by the opposing belligerents 
that submarines should be caused to adhere strictly to the rules 
of international law in the matter of stopping and searching 
merchant vessels, determining their belligerent nationality, and 
removing the crews and passengers to places of safety before 
sinking the vessels as prizes of war, and that merchant vessels 
of belligerent nationality should be prohibited and prevented from 
carrying any armament whatsoever. 

In presenting this formula as a basis for conditional declara- 
tions by the belligerent Governments, I do so in the full con- 
viction that your Government will consider primarily the humane 
purpose of saving the lives of innocent people rather than the 
insistence upon a doubtful legal right which may be denied on 
account of new conditions. (Spec. Sup. Am. Jour. Int. Law, vol. 
10, Oct. 1916, p. 310.) 

Replies. — A German note of February 10, 1916, with its 
numerous exhibits aimed to support the conclusion that 
under the circumstances of the existing hostilities " enemy 
merchantmen armed with guns no longer have any right 
to be considered as peaceable vessels of commerce." 

On March 23, 1916, after consulting the allied Gov- 
ernments the British Government communicated its views 
on the letter of January 18, 1916, in a memorandum. 



88 ARMED MERCHANT VESSELS 

This memorandum gave little attention to the proposi- 
tions of the Secretary of State but enumerated cases in 
which it was claimed the enemy has disregarded the law. 
The memorandum did say, however : 

Upon perusal of the personal letter addressed under date of 
January 18th last, by the Honorable Secretary of State of the 
United States to the Ambassador of England at Washington, 
the Government of His Britannic Majesty could not but appre- 
ciate the lofty sentiments by which Mr. Lansing was inspired 
on submitting to the countries concerned certain considerations 
touching the defensive armament of merchant vessels. But the 
enemy's lack of good faith, evidenced in too many instances 
to permit of their being regarded as isolated accidents justifies 
the most serious doubt as to the possibility of putting into 
practice the suggestions thus formulated. 

From a strictly legal standpoint, it must be admitted that 
the arming of merchant vessels for defense is their acknowledged 
right. It was established in some countries by long usage, in 
other countries it was expressly sanctioned by the legislator, 
such being the case in the United States, in particular. 

It being so, it seems obvious that any request that a bellig- 
erent forego lawful means of protection from the enemy's un- 
lawful attacks places, upon him, whoever he may be, who 
formulates the proposition, the duty and responsibility of com- 
pelling that enemy to desist from such attacks, for the said 
enemy would otherwise be encouraged rather to persist in that 
course. Now the suggestions above referred to do not provide 
any immediately efficacious sanction. (Spec. Sup. Am. Jour. Int. 
Law, vol. 10, Oct. 1916, p. 336.) 

And later in the same memorandum Great Britain 
after imputing faithlessness to Germany as well as law- 
lessness, says : 

At the end of his letter, the Honorable Secretary of State hypo- 
thetically considered the possibility of eventual decisions under 
which armed merchant vessels might be treated as auxiliary 
cruisers. 

It is His Britannic Majesty's Government's conviction that the 
realization of such a hypothesis which would materially modify, 
to Germany's advantage, the statement of views published in this 
respect by the American Government on September 19, 1914, can 
not be given practical consideration by the American authorities. 

Such a modification indeed would be inconsistent with the gen- 
eral principles of neutrality as sanctioned in paragraphs 5 and 6 



MEMORANDUM, MARCH 2 5, 1916 89 

of the preamble to the 13th convention of The Hague concerning 
maritime neutrality. Moreover the result would be contrary to 
the stipulations of the 7th convention of The Hague concerning 
the transformation of merchant vessels into warships. Finally 
if armed merchant vessels were to be treated as auxiliary cruis- 
ers, they would possess the right of making prizes, and this would 
mean the revival of privateering. (Ibid. p. 337.) 

The Secretary of State replied, diplomatically stating 
that it becomes his duty to accept the reply of the Entente 
Governments " as final, and in the spirit in which they 
have made it." 

American memorandum, March 25, 1916. — On March 
25, 1916, a memorandum prepared by the direction of 
the President, but unsigned, though issued by the De- 
partment of State, was made public as a statement of the 
" Government's attitude " on the status of armed mer- 
chant vessels. This memorandum considered the status 
of an armed merchant vessel from the point of view of 
the " neutral when the vessel enters its ports " and from 
the point of view of " an enemy when the vessel is on the 
high seas." Among other statements in this memoran- 
dum are the following : 

(1) It is necessary for a neutral Government to determine the 
status of an armed merchant vessel of belligerent nationality 
which enters its jurisdiction, in order that the Government may 
protect itself from responsibility for the . destruction of life and 
property by permitting its ports to be used as bases of hostile 
operations by belligerent warships. 

(2) If the vessel carries a commission or orders issued by a 
belligerent Government and directing it under penalty to conduct 
aggressive operations, or if it is conclusively shown to have con- 
ducted such operations, it should be regarded and treated as a 
warship. 

(3) If sufficient evidence is wanting, a neutral Government, 
in order to safeguard itself from liability for failure to preserve 
its neutrality, may reasonably presume from' the facts the status 
of an armed merchant vessel which frequents its waters. There is 
no settled rule of international law as to the sufficiency of evi- 
dence to establish such presumption. As a result a Government 
must decide for itself the sufficiency of the evidence which it 
requires to determine the character of the vessel. For the guid- 

1802—29 7 



90 ARMED MERCHANT VESSELS 

ance of its port officers and other officials a neutral Government 
may therefore declare a standard of evidence, but such standard 
may be changed on account of the general conditions of naval war 
fare or modified on account of the circumstances of a particular 
case. These changes and modifications may be made at any time 
during the progress of the war, since the determination of the 
status of an armed merchant vessel in neutral waters may affect 
the liability of a neutral Government. * * * 

The status of an armed merchant vessel as a warship in neutral 
waters may be determined, in the absence of documentary proof or 
conclusive evidence of previous aggressive conduct, by presumption 
derived from all the circumstances of the case. * * * 

(1) It appears to be the established rule of international law 
that warships of a belligerent may enter neutral ports and accept 
limited hospitality there upon condition that they leave, as a rule, 
within 24 hours after their arrival. 

(2) Belligerent warships are also entitled to take on fuel once 
in three months in ports of a neutral country. 

(3) As a mode of enforcing these rules a neutral has the right 
to cause belligerent warships failing to comply with them, together, 
with their officers and crews, to be interned during the remainder 
of the war. 

(4) Merchantmen of belligerent nationality, armed only for pur- 
poses of protection against the enemy, are entitled to enter and 
leave neutral ports without hindrance in the course of legitimate 
trade. 

(5) Armed merchantmen of belligerent nationality under a 
commission or orders of their Government to use, under penalty, 
their armament for aggressive purposes, or merchantmen which, 
without such commission or orders, have used their armaments 
for aggressive purposes, are not entitled to the same hospitality 
in neutral ports as peaceable armed merchantmen. (Spec. Sup. 
Am. Jour. Int. Law, vol. 10, pp: 367, 369.) 

The memorandum later refers to the status of armed 
merchant vessels on the high seas, enumerating various 
relations. The memorandum states : 

(11) A merchantman entitled to exercise the right of self- 
protection may do so when certain of attack by an enemy war- 
ship, otherwise the exercise of the right would be so restricted 
as to render it ineffectual. There is a distinct difference, how- 
ever, between the exercise of the right of self-protection and the 
act of cruising the seas in an armed vessel for the purpose of 
attacking enemy naval vessels. 



MEMORANDUM, MARCH 25, 1916 91 

(12) In the event that merchant ships of belligerent nationality- 
are armed and under commission or orders to attack in all cir- 
cumstances certain classes of enemy naval vessels for the pur- 
pose of destroying them, and are entitled to receive prize money 
for such service from their Government or are liable to a 
penalty for failure to obey the orders given, such merchant ships 
lose their status as peaceable merchant ships and are to a 
limited extent incorporated in the naval forces of their Govern- 
ment, even though it is not their sole occupation to conduct hostile 
operations. 

(13) A vessel engaged intermittently in commerce and under a 
commission or orders of its Government imposing a penalty, in 
pursuing and attacking enemy naval craft, possesses a status 
tainted with a hostile purpose which it can now throw aside or 
assume at will. It should, therefore, be considered as an armed 
public vessel and receive the treatment of a warship by an enemy 
and by neutrals. Any person taking passage on such a vessel 
can not expect immunity other than that accorded persons who 
are on board a warship. A private vessel, engaged in seeking 
enemy naval craft, without such a commission or orders from 
its Government, stands in a relation to the enemy similar to 
that of a civilian who fires upon the organized military forces of 
a belligerent, and is entitled to no more considerate treatment. 
(Ibid. p. 371.) 

This memorandum apparently envisages two classes 
of armed merchant vessels, namely " peaceable armed 
merchantmen " and " warlike armed merchantmen." As 
to evidence as to character an earlier paragraph had said : 

(3) A presumption based solely on the presence of an arma- 
ment on a merchant vessel of an enemy is not a sufficient reason 
for a belligerent to declare it to be a warship and proceed to 
attack it without regard to the rights of the persons on board. 
Conclusive evidence of a purpose to use the armament for ag- 
gression is essential. Consequently an armament which a neutral 
Government, seeking to perform its neutral duties, may presume 
to be intended for aggression, might in fact on the high seas be 
used solely for protection. A neutral Government has no oppor- 
tunity to determine the purpose of an armament on a merchant 
vessel unless there is evidence in the ship's papers or other proof 
as to its previous use, so that the Government is justified in sub- 
stituting an arbitrary rule of presumption in arriving at the 
status of the merchant vessel. On the other hand, a belligerent 
warship can on the high seas test by actual experience the 



92 ARMED MERCHANT VESSELS 

purpose of an armament on an enemy merchant vessel, and so 
determine by direct evidence the status of the vessel. (Ibid, 
p. 368.) 

The application of such principles for determining 
status as those mentioned in paragraph (12) above would 
prove difficult if not impossible to establish, e. g., "orders 
to attack in all circumstances " would rarely be given. 
Some states no longer give prize money and this is not 
given for destruction of naval vessels. 

This memorandum particularly shows the need of some 
definite and well-prepared statement as to merchant ves- 
sels in time of war. 

Professor Hyde y s opinion on United States memoran- 
dum of March 25, 1916. — ' 

Apart from any question respecting* the applicability of the 
foregoing declaration to the special conditions confronting the 
United States in March, 1916, the author, with greatest deference 
for the opinion of those responsible for the memorandum, con- 
fesses his inability to accept it as a statement of international 
law for the following reasons: 

(a) It fails to heed the fact that the immunity of merchant 
vessels from attack at sight grew out of their impotency to en- 
danger the safety of public armed vessels of an enemy, and 
that maritime States have never acquiesced in a principle that 
a merchant vessel so armed as to be capable of destroying a 
vessel of war of any kind should enjoy immunity from attack 
at sight, at least when encountering an enemy cruiser of inferior 
defensive strength. 

(Z>) That an armed merchantman may retain its status as a 
private ship is not decisive of the treatment to which it may be 
subjected. The potentiality and special adaptability of the vessel 
to engage in hostile operations fraught with danger to the safety 
of an enemy vessel of war, rather than the designs or purposes 
of those in control of the former, however indicative of its 
character, have been and should be deemed the test of the right 
of the opposing belligerent to attack it at sight. In view of this 
fact the lawful presence on board the armed merchantman of neu- 
tral persons or property can not give rise to a duty towards the 
ship not otherwise apparent; Every occupant thereof must be 
held to assume that the enemy will use every lawful but no 
unlawful means to subject the vessel to control or destroy it. 



ADMIRALTY OPINION, 1916 93 

(c) To test the propriety of an attack at sight by the existence 
of conclusive proof of the aggressive purpose of the merchant- 
man places an unreasonable burden on a vessel of war of an un- 
protected type, whether a surface or undersea craft, for no evi- 
dence of the requisite purposes of the merchantman may be 
in fact obtainable until the vessel of war encountering the 
former becomes itself the object of attack. The mere pursuit of 
the merchantman, prior to any signal made to it, may cause the 
vessel to attack the pursuer as soon as it gets within range. 

What constitutes, moreover, an act by way of defense must 
always remain a matter of uncertainty. The possession of sub- 
stantial armament encourages the possessor to assert or claim 
that it acts defensively whenever it opens fire. Thus in practice 
the distinction between the offensive and defensive use of- arma- 
ment disappears, for the armed merchantman is disposed to 
exercise its power whenever it can safely do so. To presume, 
therefore, that such a vessel has a " peaceable character," on 
the supposition that it will not when occasion offers open fire 
on vulnerable vessels of war of the enemy is to ignore an infer- 
ence fairly deducible from the conduct of vessels equipped with 
effective means of committing hostile acts. (2 Hyde, Inter- 
national Law, p. 469.) 

British Admiralty opinion, 1916.— On December 21, 

1916, Sir Edward Carson, First Lord of the Admiralty, 

in reply to a question in the House of Commons said : 

His Majesty's Government can not admit any distinction 
between the rights of unarmed merchant ships and those armed 
for defensive purposes. It is no' doubt the aim of the German 
Government to confuse defensive and offensive action with the 
object of inducing neutrals to treat defensively armed vessels 
as if they were men-of-war. Our position is perfectly clear — 
that a merchant seaman enjoys the immemorial right of defend- 
ing his vessel against attack or visit or search by the enemy by 
any means in his power, but that he must not seek out an enemy 
in order to attack him — that being a function reserved to com- 
missioned men-of-war. So far as I am aware, all neutral Powers, 
without exception, take the same view, which is clearly indicated 
in the Prize Regulations of the Germans themselves. I have 
confined myself to stating the general position ; but my hon. 
Friend may rest assured that the Departments concerned are 
devoting continuous, attention to all question connected with 
the theory and practice of defensive armament. (Parliamentary 
Debates, H. C. 5 series, LXXXVIII, p. 1627.) 



94 ARMED MERCHANT VESSELS 

Netherlands position on armed merchant vessels. — The 
status of armed merchant vessels in Dutch ports became 
a subject of much correspondence in 1914 and 1915. In 
a telegram to the British Legation at The Hague on 
August 8, 1914, Sir Edward Grey said : 

You should lose no time in explaining to Netherlands Govern- 
ment that British armed merchant vessels are armed solely for 
purposes of defence, in case they raise any question as to their 
position. Existing rules of international law grant the right of 
defence to all merchant vessels when attacked. There can be no 
right on the part of a neutral Government to order the internment 
of British-owned merchant vessels, nor to require them before put- 
ting to sea to land their guns, because the duty of such neutral 
Government to order the immediate departure or internment of 
belligerent vessels is limited to actual and potential warships, and 
as Great Britain does not admit that any Power has the right to 
convert merchant vessels into warships on the high seas, British 
merchant vessels that are in foreign ports cannot be so converted. 

As German rules permit German merchant vessels to be con- 
verted on the high seas, we maintain our claim to have them in- 
terned unless the neutral Government are prepared to assume re- 
sponsibility for a binding assurance that no> such conversion shall 
take place. (Parliamentary Papers, Misc. No. 14 [1917], p. 1.) 

The Dutch proclamation of neutrality had prohibited 
entrance within Dutch jurisdiction of " warships of a 
belligerent and vessels of a belligerent assimilated to 
warships " and in a communication of April 7, 1915, to 
the British minister, the Netherlands Minister for For- 
eign Affairs said : 

As far as Dutch territory in Europe is concerned, this rule ad- 
mits of no exception, except in the case of damage or by reason 
of stress of weather. 

In replying to this Sir Edward Grey communicated a 
memorandum by Prof. A. Pearce Higgins : 

As there appears to be some doubt as to the legal status of 
merchant ships which are armed in self-defence, the following 
statement may be of interest and assistance to shipowners and 
shipmasters : — 

The practice of arming ships in self-defence is a very old one. 
There are Royal Proclamations from the time of Charles I order- 



MEMORANDUM, PROFESSOR HIGGINS 95 

ing merchant ships to be armed, and to do their utmost to defend 
themselves against enemy attacks. During the Napoleonic wars 
the Prize Courts of Great Britain and the United States recog- 
nised that a belligerent merchant ship had a perfect right to arm 
in her own defence (the Catherine Elizabeth (British) and the 
Nereide (United States)). The right of a belligerent merchant 
ship to carry arms and to resist capture is definitely and clearly 
laid down in both of the cases just cited. 

Chief Justice Marshall, of the United States, in the case of the 
Nereide, said : " It is true that on her passage she had a right* to 
defend herself, and defended herself, and might have captured an 
assailing vessel." 

In modern times the right of resistance of merchant vessels 
is also recognised by the United States Naval War Code, which 
was published in 1900, by the Italian Code for the Mercantile 
Marine, 1877, and by the Russian Prize Regulations, 1895. 

Writers of weight and authority in Great Britain, the United 
States, Italy, France, Belgium, and Holland also recognise this 
right. The late Dr. F. Perels, who was at one time legal adviser 
to the German Admiralty, quotes with approval article 10 of 
the United States Naval War Code, which states : " The personnel 
of merchant vessels of an enemy, who in self-defence and in pro- 
tection of the vessel placed in their charge resist an attack, are 
entitled to the status of prisoners of war." 

The most recent authoritative pronouncement on this sub- 
ject comes from the Institute of International Law, a body com- 
posed of international lawyers of all nationalities. This learned 
society, which meets generally once a year in different countries 
to discuss and make proposals on points of International Law, at 
its meeting in 1913 at Oxford prepared a Manual of the Laws of 
Naval Warfare which was adopted with unanimity. Article 12 
of this Manual, which is in French, may be translated as follows : 

"Privateering is forbidden. Except under the conditions 
specified in article 5 and the following articles, public and private 
ships and their crews may not take part in hostilities against 
the enemy. 

"Both are, however, allowed to employ force to defend them- 
selves against the attach of an enemy ship" 

The crews of enemy merchant ships have for centuries been 
liable to be treated as prisoners of war whether they resisted 
capture or not. 

Crews who forcibly resist visit and capture, can not, if they 
are unsuccessful, claim to be released; they remain prisoners 
of war. 

Defensively armed merchant ships must not assume the offen- 
sive against enemy merchant ships. They are armed for defence, 



96 ARMED MERCHANT VESSELS 

not for attack, but if they are attacked and they are able suc- 
cessfully to repel the attack and even to capture their assailant, 
such capture is valid ; the captured ship is good prize as between 
the belligerents. 

There is some authority, as in the Italian Code and Russian 
Prize Regulations, for saying that an armed merchant ship has 
a right to go to the assistance of other national or allied vessels 
attacked, and assist them in making a capture. But this is 
by no means such a well-established rule as the rule of self- 
defence. It will in nearly all cases be much more important 
for a defensively armed ship to get safely away with her cargo 
than to go to the assistance of another merchant ship, for in 
this case the safety of both may be placed in jeopardy. 

The position of the passengers on a defensively armed ship, if 
no resistance is made, is the same as if they were on an unarmed 
merchant ship. If, however, the armed ship resists, they will, 
naturally, have to take their chances of injury or death. Unless 
they take part in the resistance, they are not liable, if the ship 
is captured, to be taken prisoners, merely because of the fact of 
resistance having been offered by the ship. (Ibid. p. 3.) 

With the memorandum was a pamphlet by Professor 
Higgins on the same subject. On July 31, 1915, M. Lou- 
don, the Minister for Foreign Affairs, replied : 

In his note of the 12th June last Mr. Chilton returned to this 
subject. [Admission of armed merchant vessels.] He specially 
called my attention to the rule of international law which permits 
belligerent merchant vessels to defend themselves against enemy 
warships, and he was good enough to add to his note a memoran- 
dum and a pamphlet in support of his observations, 

I have read these documents with much interest. However, 
there seems to me to be no connection between the above-mentioned 
rule and the question whether the admission into neutral ports of 
a certain category of vessels of belligerent nationality is or is not 
compatible with the observance of a strict neutrality. This latter 
question lies within the province of the law of neutrality. On 
the other hand, the rule invoked by Mr. Chilton is part of the law 
of war. 

A belligerent merchant vessel which fights to escape capture or 
destruction by an enemy warship commits an act the legitimacy 
of which is indeed unquestionable, but which is none the less an 
act of war. ( Ibid. p. 5. ) 

The British Government dissented from this view and 
made an elaborate argument against the Netherlands po- 



OFFICIAL ATTITUDE 97 

sition involving statements of certain consequences that 
might follow. Many notes were exchanged, but the 
Netherlands maintained the right to exclude armed mer- 
chant vessels. 

Official statements. — Governments of different States 
made known their attitude upon armed merchant vessels 
during the World War. usually by domestic regulations 
and sometimes in a more formal manner. There was 
much diversity and inclefiniteness in these documents. 

The Argentine Republic took action early in the World 
War, August 16, 1914, forbidding foreign merchant ves- 
sels to arm as auxiliary vessels of war and requiring such 
merchant vessels as were in port to declare within 24 
hours if having auxiliary status. These were to be 
treated as vessels of war. 

General Orders No. 133 of the Argentine navy depart- 
ment, August 17, 1914, provided : 

(c) Foreign merchantmen which without being officially de- 
clared as auxiliary cruisers nevertheless carry cannon for their 
defense shall not make use of them in waters under State con- 
trol, and the Government reserves to itself in case of their having 
served as auxiliary cruisers the right to treat them as such when 
they return to waters under its jurisdiction. 

As the legal status of ships of war is not conceded these ves- 
sels, any hostile act of theirs in waters under the jurisdiction of 
the State shall be considered as an act in open violation of the 
law of the country. 

(d) The general prefecture of ports shall take note of all 
foreign merchantmen which may have cannon for defense, either 
mounted or unmounted, or emplacements for cannon, to the end 
that they be especially watched. 

(e) Among the foreign merchantmen armed with cannon there 
are some that carry their cannon on the stern only, and with a 
very restricted firing sector ; in other words, they are guns which 
may fire only directly astern. It may well be conceded that the 
sole object of these guns is the defense of the boat. Other vessels 
carry them in the bow and on both sides — that is to say, in 
offensive sectors. Even though the technical requisites for con- 
sidering these boats as auxiliary cruisers do not appear, it is 
nevertheless evident that their armament suggests their purpose. 
Hence supervision in such cases shall be especially rigorous. 



98 ARMED MERCHANT VESSELS 

if) It is to be borne in mind that by virtue of the provisions 
of article 31 in the regulations of the port of the capital and of 
La Plata no boat is to enter them with explosives aboard. Con- 
sequently if any merchantmen armed with cannon carry powder 
on board they are not to be permitted to enter the harbor before 
disembarking ammunitions. 

Xg) The general prefecture of ports will take necessary meas- 
ures to prevent the departure of war vessels, auxiliary cruisers, 
or even armed merchantmen until 24 hours after the departure 
from the same harbor of any other armed or unarmed merchant- 
man flying the flag of a hostile country. 

(h) War vessels and auxiliary cruisers flying belligerent colors 
whose stop in territorial waters is limited to 24 hours shall not 
cast anchor in them except for reasons of exceptional urgency 
(caso de fuerza mayor). 

Armed merchantmen which it is suspected may be converted 
into auxiliary cruisers shall be watched with particular care, 
so that they may not be able to thwart the precautions estab- 
lished for the protection of steamers departing each in the order 
of its turn by casting anchor with hostile intent within the 
territorial waters. (1917 N. W. C. Int. Law Docs. p. 23.) 

The Chilean rules of August 14, 1914, issued by the 
Minister of Foreign Relations, provided that : 

• 

1. All vessels at anchor in Chilean ports or which navigate 
in the national territorial waters may be obliged to submit to 
the inspection of their papers by the Chilean authorities, which 
may, whenever they deem it necessary, according to the rules 
which are hereafter specified, proceed anew to the inspection of 
the vessel, of its passengers, of its cargo, and of its documents. 
In consequence, the clearance of any vessel can not be authorized, 
whatever its cargo and whatever its destination, until the ship has 
presented complete manifests. 

2. Permission to depart will be given to no merchant vessel 
which has altered or tried to alter its status, if there is reason 
to believe that the vessel has intended to transform itself into 
an auxiliary cruiser or an armed vessel in any degree whatso- 
ever. 

The following acts will be considered as furnishing a presump- 
tion of change of status: 

(a) To alter the location or position of guns which are on board 
the vessel at the time of its arrival ; to change the color, the rig- 
ging, or the equipment of the vessel in a manner to create a 
presumption that this change has an object relating to military 
operations ; 



OFFICIAL OPINIONS 99 

(6) To embark guns, arms, or munitions in the circumstanees 
which indicate adaptation of the vessel to military ends; 

(c) To refuse to take on board passengers when the vessel 
possesses suitable accommodation for them; 

(d) To load abnormal quantities of coal. 

3. The maritime authorities should demand of foreign consuls 
who vise the papers of vessels a declaration in reference to the 
character of the vessel, stating whether it is a question of a mer- 
chant vessel engaged in the transport of merchandise and passen- 
gers, or whether it forms a part of the armed forces of the nation 
to which it belongs. In this latter case the vessel will be warned 
that it must depart after twenty-four hours and with coal only 
sufficient for the journey to the nearest port of its nation. (1916 
N. W. C. Int. Law Topics, p. 16.) 

In publishing these rules the Minister of Foreign 
Affairs stated " The Government of the United States 
has issued similar regulations." 

A note from the same office on March 15, 1915, involves 
some further propositions which were due to the British 
query as to whether auxiliary naval vessels might resume 
their merchant-vessel status. 

The Government of Chile desires to settle the question sug- 
gested by the note above indicated according to the attitude 
of strict neutrality adopted by it since the beginning of the war 
and also in conformity with the general convenience of the 
American Continent, since the great European conflict has 
demonstrated in an evident manner that the international rules 
should in the future take into consideration the particular 
conditions of this hemisphere. 

Inspired by this idea, the Chilean Government sees no incon- 
venience in admitting into the ports and jurisdictional waters 
of Chile and in treating in all respects as merchant vessels, ves- 
sels which have been auxiliaries of the fleet of one of the belliger- 
ent States, when the said vessels fulfill the following conditions : 

1. That, the auxiliary vessel has not violated Chilean neu- 
trality ; 

2. That the reconversion took place in the ports or jurisdic- 
tional waters of the country to which the vessel belongs or in 
the ports of its allies ; 

3. That this was effective: that is to say, that the vessel 
neither in its crew nor in its equipment gives evidence that it 
can be of service to the armed fleet of its country in the capacity 
of an auxiliary, as it was formerly ; 



100 ARMED MERCHANT VESSELS 

4. That the Government of the country to which the vessel 
belongs communicates to all interested nations, and in particular 
to neutrals, the names of auxiliary vessels which have lost this 
status to resume that of merchant vessels ; and 

5. That the same Government give its word that the said ves- 
sels are not in the future intended for the service of the armed 
fleet in 'the capacity of auxiliaries. (Ibid. p. 28.) 

Later another communication states: 

The Chilean ports will receive merchant vessels armed for 
defense when the respective Governments previously communicate 
to us the name of the vessel which travels under these conditions 
and also the route, roll of crew, list of passengers, and cargo, 
as well as the management and the armament of the vessel, 
demonstrating that it is in reality a question of a merchant ves- 
sel which is not intended to carry on hostile acts nor to cooperate 
in the warlike operations of enemy fleets. 

If an armed merchant vessel arrives without this previous 
notice of the Government, it will be considered and treated as 
suspicious. If, violating their declaration, these vessels engage in 
operations of war against other merchant vessels without defense 
they will be forthwith considered and treated as pirates, since the 
Government of the country under whose flag they fly will have 
formally declared their exclusively commercial character by not 
incorporating them into its fleet of war. (Ibid. p. 31.) 

Cuba, March 3, 1916, reproduced as a statement of its 
policy the memorandum issued by the United States Sep- 
tember 19, 1914 (ante, p. 83). 

There were differences in the regulations issued by 
other countries. The methods of determining whether 
an armed merchant vessel was to be treated as a vessel 
of war or as a merchant vessel also varied at different 
times in some states. There were also interpretations 
which led to misunderstandings. Some of these indicated 
that it was as Mr. Churchill had predicted in 1913, " a 
period of retrogression." 

British explanation, 1917. — That British armed mer- 
chant vessels would be liable in ports of the United States 
under some of the principles set forth in the memo- 
randum of March 25, 1916, is evident from the statements 
of Sir Edward Carson and Mr. Churchill in 1917. 



BKITISH STATEMENTS, 1917 101 

Mr. Winston Churchill, speaking on February 2, 19 17, 
before the House of Commons, said : 

The object of putting guns on a merchant ship is to compel 
the submarine to submerge. If a merchant ship has no guns, a 
submarine with a gun is able to destroy it at leisure by gunfire, 
and we must remember that on the surface submarines go nearly 
twice as fast as they do under water. Therefore, the effect of 
putting guns on a merchant ship is to drive the submarine to 
abandon the use of the gun, to lose its surface speed, and to fall 
back on the much slower speed under water and the use of the 
torpedo. The torpedo, compared with the gun, is a weapon of 
much more limited application. The number of torpedoes which 
can be constructed in a given time is itself subject to certain 
limits. Any trained artillerist or naval gunner can hit with a 
gun, but to make a submerged attack with a torpedo requires a 
much higher degree of skill and training. One of the things we 
counted on to check the indefinite development of German sub- 
marine expansion was the difficulty of training crews. That 
difficulty does not manifest itself as long as submarines are free to 
use the gun, but it will undoubtedly manifest itself when they are 
driven back on the almost exclusive use of the torpedo, by the fact 
that the great majority of merchant ships which they meet will 
be effectively armed, and the result will be, or should be to a cer- 
tain extent, that a very large proportion of torpedoes will be 
wasted, because the difficulty of firing at a ship advancing with 
accuracy is very great, and there is only a very limited arc 
ahead of a ship from which a torpedo can be discharged with 
the certainty of getting home. Also the torpedo is easy to dodge, 
and a shell is impossible to dodge. I thought it was right to ex- 
plain in a few simple words this matter which is bread and butter 
to every family in this country. It is of the highest importance 
that the ships which are being built to replace existing tonnage, 
what we might call tonnage casualties, should possess a speed 
superior to the speed of an enemy submarine submerged. (Par- 
liamentary Debates, 5 s., H. C, XC, p. 1380.) 

The parliamentary secretary to the Ministry of Ship- 
ping- Control indicated his assent and Mr. Churchill 
continued : : 

I am very glad my lion. Friend assents to that, because it is 
of the utmost importance that the Admiralty's view on a -matter 
of that kind should b3 fully realised and adopted by the Depart- 
ment of Shipping Control. Another point, which is of great 
importance, is that not only should guns be put on the ships, but 
there should be at least one good gun-layer on each. I dare say 



102 ARMED MERCHANT VESSELS 

that is becoming the case now, but it was not the case until a 
short time ago, and many cases have been brought to notice of 
vessels which carried guns but carried no man really competent 
to direct the shot to its objective. (Ibid. p. 1381.) 

While under the guise of retaliation a belligerent might 
arm and use its merchant vessels for any purpose it saw fit 
as regards its enemy, such appeal to the principle of 
retaliation would give these vessels no special rights in 
neutral ports. 

German war-zone note, January 31, 1917. — After an ex- 
planatory statement the German ambassador presented to 
the United States a memorandum on January 31, 1917, 
recounting what Germany conceived to be disregard by 
the Allies of rules of international law and stating that : 

Under these circumstances Germany will meet the illegal meas- 
ures of her enemies by forcibly preventing after February 1, 1917, 
in a zone around Great Britain, France, Italy, and in the Eastern 
Mediterranean all navigation, that of neutrals included, from and 
to England and from and to France, etc. etc. All ships met within 
that zone will be sunk. ( Spec. Sup. Am. Jour. Int. Law, vol. 11, 
1917, p. 333.) 

Breaking of diplomatic relations, February 3, 1917. — 
In reply the Secretary of State reviewed the prior action 
of Germany and the promises which the United States 
understood had been made in regard to the conduct of 
submarine warfare and concluded: 

In view of this declaration, which withdraws suddenly and 
without prior intimation the solemn assurances given in the 
Imperial Government's note of May 4, 1916, this Government has 
no alternative consistent with the dignity and honor of the 
United States but to take the course which it explicitly an- 
nounced in its note of April 18, 1916, it would take in the 
event that the Imperial Government did not declare and effect 
an abandonment of the methods of submarine warfare then em- 
ployed and to which the Imperial Government now purpose 
again to resort. 

The President has, therefore, directed me to announce to Your 
Excellency that all diplomatic relations between the United States 
and the German Empire are severed, and that the American am- 
bassador at Berlin will be immediately withdrawn, and in accord- 
ance with such announcement to deliver to Your Excellency your 
passports. (Ibid. p. 337.) 



NEUTRAL PROBLEMS 103 



xl 



American attitude after breaking diplomatic rela- 
tions. — On February 3, 1917, the President explained in 
an address to Congress the reasons for the breaking of 
diplomatic relations with Germany. Negotiations were 
continued through the Swiss minister. 

A bill was introduced, February 27, 1917, to authorize 
the President to provide for the arming of American 
merchant vessels "with defensive arms fore and aft, and 
also with the necessary ammunition and means of mak- 
ing use of them." On March 12 announcement was made 
to the diplomatic representatives in Washington that the 
Government had " determined to place upon all Ameri- 
can merchant vessels sailing through the barred areas an 
armed guard for the protection of the vessels and the 
lives of the persons on board." (Ibid. p. 345.) 

After February 27 the United States also admitted to its 
ports vessels of the allied belligerents armed fore and aft. 

Other neutral problems. — The neutral may find diffi- 
culty in determining many questions if armed merchant 
vessels are to be allowed. Such means of determination 
as were accepted in the World War are without general 
sanction. How far might a neutral without liability 
allow an armed merchant vessel under the merchant flag 
of a belligerent state to take on war supplies, make re- 
pairs, etc., when that state advocates conversion and 
reconversion on the high seas without limitation? 

Article XIV of the treaty limiting naval armament, 
February 6, 1922, is as follows : 

No preparations shall be made in merchant ships in time of 
peace for the installation of warlike armaments for the purpose 
of converting such ships into vessels of war, other than the neces- 
sary stiffening of decks for the mounting of guns not exceeding 
6 inch (152 millimetres) calibre. 

There might be under terms of this situation vessels 
adapted in accordance with Article XIY. Article XIV 
has been thought by some to be a tacit sanction for the 
arming of merchant vessels, but it should be observed 
that this article provides in time of peace for strengthen- 



104 ARMED MERCHANT VESSELS 

ing decks " for the purpose of converting such ships into 
vessels of war " and that no other preparations for this 
purpose shall be made. It is apparently assumed that in 
time of war merchant vessels will be converted and that 
in time of peace decks will be stiffened for that purpose. 

If in time of peace a merchant vessel has had its 
decks stiffened and after the outbreak of war carries 
guns not exceeding 6-inch caliber, can it claim to be a 
merchant vessel armed only for defense or would any 
armament on such a vessel put it in the class of a war 
vessel? May it be maintained that the stiffening of 
decks was not for the purpose of conversion into vessels 
of war but for installing- guns for defense '? 

The wording of Article XIV does not necessarily pre- 
clude such an interpretation as the latter, and the French 
translation, which is equally official, would possibly per- 
mit such an interpretation. 

The opposing belligerent might; however, maintain 
that deck strengthening in time of peace was for the pur- 
pose of converting the vessel into a vessel of war, and that 
therefore the mounting of a gun of any caliber oh such a 
vessel was a fulfillment of the purpose making the vessel 
a vessel of Avar so far as belligerent relations were con- 
cerned. A neutral might maintain the same position. 

Probably the very vessels which might have had 
deck strengthening would be the vessels which, remain- 
ing in the merchant service, would arm for defense, and 
it thus armed would, under the belligerent enemy's in- 
terpretation, become liable as vessels of war. The argu- 
ment would be briefly that strengthening decks is to 
prepare for conversion into a vessel of war. Putting 
guns on board is evidence of conversion ; therefore a ves- 
sel having guns on decks stiffened in time of peace is a 
vessel of war. The belligerent can not take the chance 
of being sunk while making an investigation to find out 
whether such a vessel has been legally converted into a 
vessel of war in a home port in accord with the rules of 
a Hague convention. 



CONCLUSION 105 

The granting of subsidies and special franchises, the 
provisions for taking over into public service in time of 
war, and other state acts complicate the establishing of 
a well-defined basis for neutral judgment of the status 
of merchant vessels in war time. The public ownership 
of merchant vessels with varying degrees of public 
control adds further difficulties. 

Conclusion. — There have been wide differences of 
opinion and practice in regard to the treatment of armed 
merchant vessels. 

It can not be said that there is now agreement as to the laws 
in regard to armed merchant vessels, but under modern conditions 
the ancient reasons for arming do not exist, as piracy and 
sea thieving of early days no longer exist. Arming might be 
to meet a merchant vessel of the enemy similarly armed, as was 
the British contention just before and in the early part of the 
World War. Soon, however, it was apparent from documents 
and practice that an armed merchant vessel's master would use 
his arms against what he might consider an inferior vessel. For 
safety of personnel and property, a merchant vessel should 
remain a peaceful vessel. A vessel of war should likewise 
conduct itself in accord with the rules of war, and should not be 
put in peril by vessels whose immunity and right to safety it 
is under obligation to respect. (Wilson, Handbook of Interna- 
tional Law, 2d ed., p. 306.) 

Late state practice in owning and operating more or 
less directlv some of the merchant marine under its flag 
would seem to make some of the early opinions scarcely 
applicable to present conditions. These and many other 
reasons point to the desirability both for belligerents and 
neutrals of a clear determination of the status of armed 
merchant vessels in the time of war. 

SOLUTION 

Practice and opinion since 1914 afford some support 
for the position of each neutral and for the protest of 
each belligerent, but the position of state C seems to be 
gaining support. The whole situation shows the need 
of clear determination of the status of armed merchant 
vessels. 

1802—29 S 



APPENDICES 



ARRETE du Roi des Belges, reglant l' Admission des Batiments 
de Guerre Etrangeres dans les Eatjx et Ports Belges. 
Brtjxelles, le 18 Fevrier, 1901 

Leopold II, Roi des Beiges, a tous presents et a venir, Salut. 

Considerant qu'il y a lieu de regler, conformement au droit in- 
ternational et aux obligations de la neutralite perpetuelle, l'admis- 
sion des batiments de guerre etrangers dans les eaux et ports du 
Royaume ; 

Sur la proposition de nos Ministres des Affaires Etrangeres, de 
la Guerre, et des Cheminsi de Fer, Postes et Telegraplies, 

Nous avons arrete et arretons : 

dispositions generates en temps de paix 

Art. l er . En temp® de paix, les batiments de guerre appar tenant 
a des Puissances etrangeres peuvent entrer librement dans les 
ports Beiges de la Mer du Nord et mouiller devant ces ports dans 
les eaux territoriales, pourvu que le nombre de ces batiments 
portant le meme pavilion, en y comprenant ceux qui se trouverai- 
ent deja dans cete zone ou dans un port, ne soit pas superieur h 
trois. 

2. Les batiments de guerre etrangers ne peuvent entrer dans 
les eaux Beiges de 1'Escaut, mouiller en rade d'Anvers ou penetrer 
dans les eaux interieures du Royaume, sans avoir obtenu l'autori- 
sation du Ministre des Affaires Etrangeres. 

Gette autorisation sera demandee par rentremise du sous-in- 
specteur du pilotage Beige a Flessingue. 

3. Les batiments de guerre etrangers, & moins d'une autorisa- 
tion speciale du Gouvernement, ne peuvent sojourner pendant 
plus de quinze jours dans les eaux territoriales et ports Beiges. 

lis sont tenus de prendre le large dans les six beures, s'ils y 
aont invites i>ar 1'administration de la marine ou les autorites 

106 



107 

militaries territoriales, meme dans le cas ou le terrne fixe pour 
leur sejour ne serait pas expire. 

4. Si des circonstances particulieres l'exigent, le Gouvernement 
se reserve la faculte d'apporter des modifications aux restrictions 
imposees ci-dessus a l'entree et au sejour des batiments de guerre 
Strangers dans les ports et eaux Beiges. 

5. Les dispositions des Articles l er , 2, et 3 ne s'appliquent pas 
aux batiments de guerre dont l'admission a ete autorisee par la 
voie diplomatique, ni aux navires a bord desquels se trouve soit 
un Chef d'Etat, soit un Prince d'une dynastie r€gnante, soit un 
Agent Diplomatique accredits aupr§s du Roi ou du Gouvernement. 

6. II est interdit aux batiments de guerre etrangers, se trouvant 
dans les eaux Beiges, de faire des releves de terrains et des 
sondages, ainsi que des exercices de debarquement ou de tir. 

Les hommes et l'equipage devront etre sans armes lorsqu'ils 
descendront a terre. Les officiers et sous-ofiiciers pourront porter 
les armes qui font partie de leur uniforme. 

Les embarcations qui circuleront dans les ports et les eaux 
territoriales ne pourront etre armees. 

Si des honneurs funebres doivent etre rendus a terre, une 
exception au section 2 du present Article pourra etre autorisee 
par le Ministre de la Guerre, sur la demande des autorites 
militaires territoriales. 

7. Les Commandants des batiments de guerre etrangers sont 
tenus d'observer les lois et les reglements concernant la police, 
la sant6 publique et les impots et taxes, a moins d'exceptions 
etablies par des Conventions particulieres ou par les usages 
internationaux. 

ADMISSION DES NAVIRES DE GUERRE APPARTENANT A DES NATIONS 

BELLIGER ANTES 

8. Les batiments appartenant a la marine militaire d'un Etat 
engage dans une guerre maritime ne sont admis dans les eaux 
territoriales et les ports Beiges de la Mer du Nord que pour une 
duree de vingt-quatre beures. 

Le meme navire ne peut §tre admis deux fois dans l'espace de 
trois mois. 

9. L'acc^s des eaux Beiges de l'Escaut est interdit, a moins 
d'autorisation speciale du Gouvernement, aux batiments de guerre 
appartenant a un Etat engagS dans une guerre maritime. 

Aucun pilote ne peut §tre fourni a ces batiments s'ils ne sont 
pas pourvus de la dite autorisation. 

Si l'autorisation n'a pas ete obtenue par la voie diplomatique, 
elle doit etre demandee par l'entremise du sous-inspecteur du 



108 

pilotage Beige a Flessingue, qui transmettra la decision au 
Commandant du navire. 

10. Sauf en cas de danger de pier, d'avaries graves, de" manque 
de vivres ou de combustible, Faeces des eaux territoriales et 
ports Beiges de la Mer du Norcl est interdit aux batiments de 
guerre convoyant des prises et aux batiments amies en course 
naviguant avec ou sans prises. 

11. Si des batiments de guerre ou des navires amies en course 
appartenant a une nation engagee dans une guerre maritime sont 
contraints de se refugier dans les eaux ou ports Beiges de la Mer 
du Norcl, par suite cle danger de mer, d'avaries graves, cle manque 
de vivres ou de combustible, ils reprendront le large aussitot que 
le temps le permettra ou bien dans les vingt-quatre heures qui 
suivront soit rachevemeiit des reparations autorises, soit l'em- 
barquement cles provisions dont la necess'te aura ete deinontree. 

12. Le Commandant de tout batimeiit de guerre d'une Puissance 
belligerante aussitot apres son entree dans les eaux ou ports 
Beiges de la Mer du N.or.d sera, a rintervention cle radministra- 
tion cle la marine, invite a fournir des indications precises con- 
cernant le pavilion, le nom, le tonnage, la force cles machines, 
l'equipage du bailment, son armement, le port de depart, la 
destination, ainsi que les autres renseignements necessaires pour 
determiner, le cas echeant, les reparations ou les approvisionne- 
ments en vivres et cliarbon qui pourraient etre necessaires. 

13. En aucun cas il ne peut etre fourni aux batiments de guerre 
ou aux nav.i-es amies en course dime nation engagee dans une 
guerre maritime des approvisionnements ou nioyens cle repara- 
tions au dela de la mesure indispensable pour qu'ils puissent 
atteindre le port le plus rapproche de leur pays ou d'un pays 
allie au leur pendant la guerre. 

Un meme navire ne pourra etre, sans autorization speciale, 
pourvu cle cliarbon une seeonde fois que trois mois au moins apres 
un prem'er cliargemeiit dans un port Beige. 

14. Les batiments specifies a V Article precedent ne peuvent, 
a Taide de fournitures prises sur le territoire Beige, augmenter, 
cle quelque maniere que ce ' soit, leur materiel cle guerre, ni 
renforcer leur equipage, ni faire des enrolements, meme parnii 
leurs nationaux, ni executer, sous pretexte cle reparation, des 
travaux susceptibles d'accroitre leur puissance militaire, ni de- 
barquer pour les rapatrier par les voles de terre, des homines, 
marins ou soldats se trouvant a bord. 

15. Ils doivent s'abstcnir de tout acte ayant pour but de faire 
du lieu d'asile la base d'une operation quelconque contre leurs 
ennemis, comme aussi de toute investigation sur les ressources, 
les forces et remplacement de leurs ennemis. 



109 

16. lis sont tenus de se conformer aux prescriptions des Articles 
6 et 7 du present Arrets et d'entretenir des relations pacifiques 
avec tons les navires, amis ou ennemis, mouilles dans le nieme port 
ou dans la meme zone territoriale Beige. 

17. L'Schange, la vente ou la cession gratuite de prises ou de 
butin de guerre sont interdits dans les eaux et ports Beiges. 

18. Tout acte d'hostilite est interdit aux batiments de guerre 
etrangers dans les eaux Beiges. 

19. Si des batiments de guerre ou de commerce de deux nations 
en etat de guerre se trouvent en meme temps dans un port ou 
dans les eaux Beiges, il y aura un intervalle de vingt-quatre 
lieures au moins fixe par les autorit^s competentes entre le 
depart d'un navire de Fun des belligerants et le depart subsequent 
d'un navire de Fautre belligerant. 

Dans ce cas il pourra etre fait exception aux prescriptions de 
F Article 8. 

La priorite de la demande assure la priorite de la sortie. 
Toutefois le plus faible des deux batiments pourra etre autorise a 
sortir le premier. 

20. Le Gouvernement se reserve la faculte cle modifier les dis- 
positions des Articles 8 et suivants du present Arrete, en vue de 
prendre, dans les cas speciaux et si des circonstances excep- 
tionnelles se presentent, toutes les mesures que la stricte observa- 
tion de la neutralite rendrait opportunes ou necessaires. 

21. Dans le cas d'une violation des dispositions du present 
Arrete, les autorites locales designees par le Gouvernement 
prendront toutes les mesures que les instructions speciales leur 
prescrivent, et elles avertiront sans delai le Gouvernement qui 
introduira aupres des Puissances §trang£res les protestations et 
reclamations necessaires. 

DISPOSITIONS SPECIALES EN CAS DE MOBILISATION DE L'ABMEE 

22. Aussitot que la mobilisation de Farmee est decret^e, il est 
interdit a tous batiments de guerre etrangers de mouiller dans les 
eaux et ports Beiges de la Mer du Nord sans autorisation prea- 
lable du Gouvernement, sauf les cas de danger de mer, de manque 
d'approvisionnements ou d'avaries graves. 

Aucun pilote ne pourra, hors les cas de force majeure pr6vus 
ci-dessus, etre fourni aux clits navires s'ils n'ont pas obtenu 
Fautorisation prealable requise. 

En ce qui concerne les eaux Beiges de FEscaut 5 lorsque Fau- 
torisation d'y penetrer aura 6te" accordee dans ces circonstances, 
le sous-inspecteur du pilotage Beige a Flessingue previendra le 
Commandant du navire qu'il doit s'arreter en vue du Fort 
Frederic pour communiquer cette autorisation au delegue - du 



110 

Gouverneur Militaire de la position d'Anvers, qui sera muni des 
instructions necessaires. 

Le pavilion Beige est hisse" sur Tancien Fort Frederic en un 
point visible pour les navires qui approchent. 

DISPOSITIONS FINALES 

23. Un exemplaire du present Arrets sera remis par les autorites 
maritimes au Commandant de tout batiment de guerre ou navire 
arme en course aussitOt apres qu'il aura et§ autorise a mouiller 
dans les eaux Beiges. 

24. Nos Ministres des Affaires Etrangeres, de la Guerre, et des 
Chemins de Fer, Postes et Telegraphes sont charges, chacun dans 
la limite de ses attributions, de l'execution du present Arrete. 

Donne" a Bruxelles, le 18 fevrier, 1901. 

Leopold. 
Par le Roi: 
P. de Favereau, 

Ministre des Affaires Etrangeres. 

A. COTJSEBANT D'AlKEMADE, 

Ministre de la Guerre. 

J. LlEBAERT, 

Ministre des Chemins de Fer, Postes, et Telegraphes. 
(94 Brit, and For. State Papers, p. 665.) 



II 

Belgian Regulations relative to the Admission of Foreign 
Warships into Belgian Ports and Harbours. Brussels, De- 
cember 30, 1923 

Albert, Roi des Beiges, 

A tous, presents et a venir, Salut. 

Considerant que les dispositions de 1' arrete royal du 18 fevrier 
1901 concernant l'admission des bailments de guerre etrangers 
dans les eaux et ports du Royaume ne repondent plus a la situa- 
tion actuelle : 

Sur la proposition de Nos Ministres des Affaires Etrangeres, des 
Chemins de Fer, Marine, Postes et Telegraphes, et de la Defense 
Nationale, 

Nous avons arrete et arretons : 

dispositions generales relatives au temps de paix 

Art. l er . Le terme " batiment de guerre " cloit §tre considere 
comme s'appliquant non seulement a tous les batiments de guerre 



Ill 

designes comme tels au sens admis de ce terme, inais egalement 
aux navires auxiliaires de toutes sortes. 

2. En temps de paix, les batiments de guerre appar tenant a des 
Puissances Strangeres reconnues par la Belgique peuvent entrer 
librement dans les ports beiges de la Mer du Nord et mouiller 
dans la partie des eaux territoriales situ6es a moins de trois milles 
marins de la cote, pourvu que le nombre de ces batiments portant 
le meme pavilion, en y comprenant ceux qui se trouveraient deja 
dans cette zone ou dans un port, ne soit pas superieur & trois. 

Sauf dans les cas prevus a r Article 5, les visites doivent toujours 
etre precedees d'une notification. Cette notification doit etre trans- 
mise par la voie diplomatique habituelle, de fagon a. parvenir, si 
les circonstances le permettent, au moins sept jours avant la date 
de la visite projet£e. 

3. Les batiments de guerre etrangers ne peuvent entrer dans les 
eaux beiges de 1'Escaut, mouiller en rade d'Anvers, ou penetrer 
dans les eaux interieures du Royaume sans avoir obtenu l'autori- 
sation du Ministre des Affaires Etrangeres. 

Si elle n'a pas ete* obtenue prealablement par la voie diploma- 
tique, cette autorisation sera demandee par 1'entremise du service 
du pilotage beige des bouches de 1'Escaut, qui transmettra la 
decision au commandant du navire. 

4. Les batiments de guerre etrangers, a moins d'une autorisa- 
tion speciale du Gouvernement, ne peuvent sejourner pendant 
plus de quinze jours dans les eaux territoriales et ports beiges. 

lis sont tenus de prendre le large dans les six heures, s'ils y 
sont invites par l'administration de la marine, sur des instructions 
des autorites militaires territoriales, meme dans le cas oil le 
terme fixe pour le sejour ne serait pas encore expire. 

Le droit d'assigner des postes de mouillage aux batiments de 
guerre et de les faire changer eventuellement de mouillage est at- 
tribue jusqu'a nouvelle disposition; dans les eaux maritimes, an 
fonctionnaire delegue par radministration de la Marine ; dans les 
eaux interieures, aux representants de radministration des Ponts 
et Ghaussees, et dans les ports, au capitaine du port. 

5. La defense de faire entrer ou mouiller librement plus de trois 
batiments de guerre portant le meme pavilion dans la zone fixee 
par 1' Article 2, ainsi que les dispositions de 1' Article 3 et du § l er 
de l'Article 4, ne s'appliquent pas : 

(1.) Aux batiments de guerre dont l'admission a ete autorisee 
par la voie diplomatique : 

(2.) Aux navires a bord desquels se trouve soit un chef d'Etat, 
soit un prince d'une dynastie regnante, soit un agent diplomatique 
accredit aupres du Roi ou du Gouvernement ; 



112 

(3.) Aux batiments cle guerre qui sont contraints de relacher 
pour cause d'avaries, de gros temps ou autres causes de force 
majeure ; 

(4.) Aux navires charges de la surveillance des pecheries de la 
Mer du Nord, conformement a. la Convention des pecheries de la 
Mer du Nord. Ces garde-peche sont tenus d'exhiber, a Fapproehe 
des eaux territoriales, le signe distinctif qui leur a ete attribue 
par la Convention internationale. 

6. Les batiments de guerre etrangers ne sont pas sounds a 
1'obligation de prendre un pilote pour naviguer dans les eaux 
beiges, liiais ils doivent se conformer a tons autres reglements 
relatifs au mouillage et & la navigation dans les eaux beiges. 

11 est interdit aux batiments de guerre etrangers se trouvant 
dans les eaux beiges, de faires des releves de terrains, des 
sondages, des exercices de debarquement ou de tir, ainsi que 
de faire, sans autorisation, aucun travail sous-marin execute 
avec ou sans scaphandrier. 

Les sous-marins etrangers ne pourront, en aucun cas, s'im- 
merger dans les eaux territoriales ou entrer immerges dans les 
eaux territoriales. 

Les homines de Fequipage devront etre sans amies lorsqu'ils 
descendront a terre. Les officiers et sous-officiers pourront porter 
les amies blanches qui font partie de leur uniforme. 

Les embarcations qui circuleront dans les ports et les eaux 
territoriales ne pourront etre armees. 

Si les honneurs funebres doivent etre rendus a terre, une 
exception a Falinea 4 du present Article pourra etre autorisee 
par le Ministre de la Defense Nationale, sur la demande des 
autorites militaires territoriales. 

Aucun batiment de guerre etranger ne pourra mettre a execution 
une sentence de mort dans les eaux territoriales. 

7. Les commandants de batiments de guerre etrangers sont 
tenus d'observer les lois et les reglements concern ant la police, 
la sante publique et les impots et taxes, a moins d'exceptions 
etablies par des conventions particulieres ou par des usages 
internationaux. 

8. A leur entree dans un port, les batiments de guerre etrangers 
seront accostes par un fonctionnaire envoye par Fadministration 
de la marine, qui presentera a rofficier commandant les saluta- 
tions du port. 

Le fonctionnaire delegue fera connaitre au commandant le 
poste de mouillage qui a ete assigne a son navire ; il slnformera 
de Tobjet et de la duree presumee de la visite, du nom de 
l'officier commandant et des renseignements qu'il est d'usage de 
recueillir dans ces occasions. 



113 

Dans le cas on le fonctionnaire charge de souhaiter la bien- 
venue au batiment de guerre etranger arriverait a bord apres que 
celui-ci aurait pris son mouillage ou se serait amarre, il ferait 
n&anmoins la communication et l'enquete prescrites ; il donne- 
rait egalement confirmation du poste de mouillage deja ou en 
assignerait un autre. 

9. Dans le cas ou un batiment de guerre etranger ne se 
conformerait pas aux regies edictees par le present arrete, 
radministration de la marine ou 1'autorite militaire locale attirera 
d'abord l'attention de Tofficier commandant sur la contravention 
commise et l'invitera formellement a observer les reglements. 

Si cette derniere demarche echoue 1'autorite militaire territo- 
riale pourra inviter le batiment de guerre etranger a quitter 
immediatement le port ou les eaux territoriales. 

DISPOSITIONS DIVERSE S 

10. Sont abrogees les dispositions contraires au present arrete. 

11. Les dispositions qui precedent ne s'appliquent pas en temps 
de guerre ou de mobilisation, ou lorsque la crainte d'une guerre, 
le respect de la neutrality, ou toute autre consideration dont le 
Gouvernement beige sera seul juge, l'obligerait d'en suspendre les 
effets. 

12. Nos Ministres des Affaires etrangeres, des Chemins de fer, 
Marine, Postes et Telegraphes et de la Defense Nationale sont 
charges, chacun en ce qui le concerne, de rexecution du present 
arrete. 

Donne a Bruxelles, le 30 decembre 1923. 



Albert. 



Le Ministre des Affaires Etrangeres, 
Henri Jaspar. 

Le Ministre des Chemins de fer, 
Marine, Postes et Telegraphes, 
Xavier Neujean. 

Le ministre de la Defense Nationale, 
P. Forthomme. 
(118 Brit, and For. State Papers, p. 43.) 



Ill 

Danish Regulations Relative to the Admission of Foreign 
Ships of War to Danish Ports and Territorial Waters in 
Time of Peace. May 11, 1921 

Art. l er . II est permis aux bailments de guerre des Puissances 
etrangeres, sans avis prealable, de naviguer ou de mouiller dans 
les eaux danoises a l'exception des eaux interieures, de la rade de 
Copenhague et des eaux fermees (voir les Articles 3, 4 et 5). 



114 

2. II est permis, avec les exceptions mentionnees dans cet 
Article, aux batiments de guerre des Puissances etrangeres de 
mouiller pour un sejour de courte duree sans avis prealable dans 
les ports danois qui se trouvent immMiatement sur les voies de 
trafic naturelles passant par le Kattegat, le Sund, le Grand et le 
Petit Belt, ainsi que dans les ports de Tile de Bornholm. 

Un sejour de plus de quarante-huit heures ainsi qu'une visite 
d'une escadre ou une visite a Fredericia, Nyborg, Kors0r ou 
Elseneur devra etre annonce prealablement par voie diplomatique 
(voir cependant 1' Article 6). 

3. 11 est permis aux batiments de guerre des Puissances §tran- 
gSres de mouiller ou de naviguer dans les eaux interieures 
danoises ou de mouiller dans les ports de la monarchic danoise 
autres que ceux mentionnes dans l'Article 2, premier alinea, pourvu 
qu'un avis prealable ait ete donne par voie diplomatique (voir 
cependant les Articles 4, 5 et 6). 

Les eaux interieures danoises comprennent outre les ports, 
entrees de ports, rades et baies, les eaux territoriales situees 
entre et en dega des lies, ilots et r&cif s que ne sont pas con- 
tinuellement submerges. 

Sont specialement regardees comme eaux interieures les eaux 
suivantes : 

Les fiords de la cOte orientale du Jutland, 

Les eaux au sud de la Fionie avec les entrees suivantes : 

La passe entre le Langeland et la Fionie, 

La passe entre le Langeland et Tile d'JEr0. 

La passe entre l'ile d'iEr0 et Tile de Ly0, 

La passe entre Tile de Ly0 et la Fionie, 

La passe entre le continent du Jutland meridional et les lies 
de Brands0, de Baag0 et d'Aar0, 

La passe entre le continent du Jutland meridional et une 
ligne : Halk Hoved — la pointe est de Bars0 — Tantoft Nakke. 

La partie de la baie de S0nderborg delimitee vers le sud par 
une ligne tracee de la pointe de Lille Borrishoved a Femplacement 
de la balise " Helts Banke," ensuite de ce point a Femplacement 
de la balise " Middlegrund S" et de ce dernier point a la pointe 
pres de S0nderby sur le Kegenaes. 

La partie des eaux au sud de Egernsund, delimitee vers le sud 
par une ligne tracee du feu-anterieur de Rinkenaes a la balise de 
" Egernsund Anduvningsvager " et de la au feu-anterieur de 
Skodsb0l. 

Les fiords de la cote occidentale du Jutland. 

Le fiord de Odense. 

Les eaux a l'ouest et au nord de la ligne Hasen0re-Sams0 
Endelave-Bj0rnsknude. 



115 

Les eaux a Test de File de Seir0. 

La partie des eaux territoriales danoises du Kattegat, du Sund, 
du Grand et du Petit Belt qui forme les voies de trafic naturelles 
entre la Mer du Nord et la Mer Baltique, n'est pas comprise sous 
les eaux interieures (voir cependant 1' Article 2). 

4. II est permis aux batiinents de guerre cle Puissances 
etrangeres de naviguer ou de mouiller dans le port et la rade 
de Copenhague, apr§s autorisation prealable. Un avis prealable 
par voie diplomatique suffit, s'il ne s'agit que de passer par les 
passes de " Hollaenderdybet " et de " Drogden " (voir cependant 
1' Article 6). 

La rade de Copenhague est delimitee vers le nord par une ligne 
tracee du port de Taarbaek a l'emplacement de la bouee lumineuse 
" Taarbaek Rev " et de ce point a l'emplacement de la bouee 
lumineuse " Saltholm Nord-Est," du c6te de Test par une ligne 
tracee de l'emplacement de ladite bouee a l'extreme nord de File 
de Saltholm et de ce point par le littoral ouest de Saltholm jusqu'a 
l'extreme sud de cette ile, vers le sud par une ligne tracee de ce 
dernier point a 1'emplacement du bateau-feu " Drogdesn Fyrskib," 
ensuite de ce point a l'emplacement de la balise " Aflandshage " 
(balise rouge & deux balais) et de ce dernier point a la cOte de 
la Seeland dans la direction de ladite balise vers le clocher de 
Vallensbaek dans File de Seeland. 

5. Les eaux interieures danoises ci-dessous nominees, sont re- 
gardees comme fermees aux batiments de guerre des Puissances 
etrangeres, et la permission d'y mouiller et d'y naviguer ne sera 
donnee qu'aux batiments nommes a l'Article 6 : 

Le Isef jord et son entree, 
Le Limfjord et ses entrees, 

Les eaux dites " Smaalandsfarvandet " avec les entrees sui- 
vantes: 

Agers0sund, 

Om0sund, 

La passe entre les iles de Om0 et de Lolland, 

Guldborgsund, 

Gr0nsund, 

B0gestr0mmen, 

Le Alssund, 

Le Alsf jord. 

6. Les restrictions des Articles 2, deuxieme alinea, 3 et 4 ne 
s'appliquent pas : 

(a) Aux batiments. a bord desquels se trouvent des chefs d'Etat 
ou leurs repr§sentants officiels ou bien des membres d'une famille 
r^gnante, ni aux batiments escortant de tels navires ; 

(b) Aux batiments se trouvant en detresse; 



116 

(c) Aux batiments ayant le controle.de la pec-he en vertu de la 
Convention du 6 mai 1882, concernant la police de la peche dans 
la Mer du Nord, pour ce qui regarde les ports et rades de la cote 
occldentale du Jutland. 

7. Sont abrogeesi les dispositions confirmees par Sa Majeste le 
Roi en date des 15 Janvier et 30 juin 1913. concernant l'admission 
en temps de paix aux ports et aux eaux territoriales de la mo- 
narchic danoise de batiments de guerre appartenant a des Puis- 
sances etrangeres. 

Klaus Berntsen. 

(114 Brit, and For. State Papers, p. 721.) 



IV 

DECREE REGARDING THE USE OF RADIOTELEGRAPHY AND RADIO- 
TELEPHONY BY FOREIGN WARSHIPS WHILST IN THE PORTS AND TER- 
RITORIAL Waters of Italy and Italian Colonies. July 10, 1924 

[Translation] 

Victor Emanuel III. By the Grace of God and the Will of the 
Nation, King of Italy. 

In view of the Royal Decree No. 860 of the 28th May, 1922, 
which prescribed new rules for the grant to foreign warships of 
permission to anchor in the ports and waters of the kingdom and 
the colonies ; 

In view of the Royal Decree No. 899 of the 29th March, 1923, 
which made certain modifications in the preceding Decree; 

Considering the advisability that rules be laid down also for 
the use of radiotelegraphy and radiotelephony in the ports of the 
kingdom and the colonies by foreign warships ; 

Having heard the Superior Naval Council, which has given an 
opinion favourable in principle ; 

On the proposal of the Admiralty, in concert with the Ministries 
of Foreign Affairs, War, the Colonies and Communications; 

We have decreed and do decree :■ — ■ 

Art. 1. Foreign warships and the aeromobiles accompanying 
them must, while in the waters of the fortified places and in the 
ports of the kingdom and colonies, observe the following regula- 
tions for the use of radiotelegraphy and radiotelephony in addi- 
tion to those prescribed by the Royal Decree No. 860 of the 28th 
May, 1922, as modified by the Royal Decree No. 899 of the 29th 
March, 1923. 

2. Foreign warships and the aeromobiles accompanying them, 
while in the waters of maritime fortified places and naval bases 
of the kingdom and colonies or anchorages in their vicinity re- 



117 

ferred to in article 8 of the Royal Decree No. 860 of the 28th May, 

1922, as modified by the Royal Decree No. 899 of the 29th March, 

1923, must, in order to utilise their radiotelegraphic or radiotele- 
phonic apparatus, obtain from the commander of the place or port 
the relative permission on previous notification of the system, the 
wave-length to be employed in transmission and the time of 
working. 

3. Foreign warships and the aeromobiles accompanying them, 
while in other ports of the kingdom and colonies not adjacent to a 
maritime fortified place or naval base, must conform to the fol- 
lowing rules : 

(a) Transmissions on waves of 600 metres are forbidden except 
for messages for assistance or in answer to the same ; 

(b) Interference with messages of national radiotelegraphic 
stations, whether movable or stationary, must be avoided ; 

(c) Transmissions must be suspended on a request from any 
naval or port authority or any stationary national radiotele- 
graphic station. 

(d) Prolonged messages with apparatus which do not transmit 
tvith a pure continuous wave must be avoided ; 

(e) If units of the royal navy are in port, their high command 
must be asked previously. 

The present Decree will have effect from the date it bears. 

We order, &c, &c, &c. 

(120 Brit, and For. State Papers, p. 657.) 



V 

Norwegian Regulations Relative to the Admission of Foreign 
Warships to Norwegian Ports and Harbours. Christiania, 
February 14, 1922. 

Note. — These regulations were promulgated by the Royal Order 
of January 20, 1913 (Vol. CVII, p. 1064) and were modified by the 
Royal Orders of August 21 and September 11, 1914, and February 
14, 1922. 

[Translation] 

Art. 1. No foreign warships, except those mentioned in article 
4, may enter Norwegian military ports or naval stations without 
having previously obtained permission to do so from His Majesty 
the King or from such person as he may have authorised to grant 
such permission. 

The types and names of the warships which desire to enter 
Norwegian military ports or naval stations, and the time and 
duration of the visit, must be stated in advance. 



118 

The duration of the visit must not, without special permission 
and in extraordinary circumstances, exceed eight days, and not 
more than three warships of the same nationality will, as a rule, 
be permitted to visit the same port at the same time. 

2. The following sections of the Norwegian coast are at present 
considered to be military ports or naval stations : 

The Christiania Fjord, with the waters within the line formed 
by Tonsberg Tonde, Faerder Light, Torbjornskjaer Light, Viker- 
tangen to Asmalo, Askholm to the coast east of Skjebergkilen. 

Christiansand Harbour, with the waters within Fredriksholm, 
Oxo Light, Gronningen Light, Torso Light. 

Bergen Harbour and the entrances thereto within the line 
formed by Fonnes (eastern side of Lygre Fjord), Helliso Light, 
Tekslen (northern side of Kors Fjord), Lysekloster Church. 

Trondjhem Fjord, within Smellingen-Grindviktangen (Rishaug). 

Vardo Harbour. 

3. After previous notice has been given, foreign warships are 
free to enter other ports and anchorages in the Kingdom provided 
no regulations to the contrary have been issued in special cases. 
Not more than three such vessels of the same nationality may, 
however, stay in the same port, and the duration of the stay must 
not exceed fourteen days. 

Deviations from the regulations contained in this section can 
only be made in accordance with permission obtained through the 
diplomatic channel. 

4. The following are exempt from the main regulations con- 
tained in articles 1 and 3 : 

(a) Warships carrying the heads of foreign States and escort- 
ing vessels. 

(b) Warships in evident distress through perils of the sea; 
these can at any time seek shelter in the ports of the Kingdom. 

(c) Warships intended or used for fishery inspection or for 
hydrographic or other scientific work. 

5. In every Norwegian port where harbour authorities exist, 
foreign warships are obliged to take up the anchorage berths 
which may be assigned to them by the harbour authorities (the 
harbour master). 

Permission granted to foreign warships to visit Norwegian ports 
or anchorages may be withdrawn at any time. 

Every foreign warship lying in a Norwegian port or anchorage 
must at any time — even if it is entitled to lie there in accordance 
with what is stated above — comply with a request to weigh anchor 
and leave the port within six hours, or shift berth in accordance 
with directions received. 

6. No person from a foreign warship lying in a Norwegian port 
or waters may, without special permission, approach or enter any 



119 

zone within which there are batteries, fortifications, or other mili- 
tary works, or which is enclosed by the military authorities. 

Landing exercises and firing exercises with guns, rifles or torpe- 
does must not be carried out. The crew must be unarmed when 
on shore, but officers, petty officers and cadets may bear the arms 
belonging to their respective uniforms. 

7. No person belonging to a foreign warship may make, multi- 
ply or publish plans or sketches of the ports and waters of the 
kingdom, or take measurements or soundings other than such as 
may be considered necessary for safe navigation in the ordinary 
channels. 

Similarly, no person may make, multiply or publish plans, 
sketches, drawings, photographs, or descriptions of Norwegian 
fortifications or of establishments, &c, belonging to them (see 
article 3 of the Military Secrets Law, August 18, 1914). 

8. The commander of a foreign warship must comply with the 
sanitary, customs, pilotage and harbour regulations issued by the 
local authorities. 

9. The above regulations shall remain in force until His Maj- 
esty the King orders otherwise. 

(116 Br. and For. State Papers, 897.) 



VI 

Regulations Regarding the Entry and Sojourn of Foreign 
Ships of War, in the Territorial Waters and Ports of the 
Serb-Croat- Slovene State. Bled, June 20, 1924 

Nous, Alexandre I er , par la grace de Dieu et la volonte tin 
peuple, Roi des Serbes, Croates et Slovenes. 

Sur la proposition de notre Ministre de la Guerre et de la 
Marine, prescrivons ce Reglement sur Faeces et le sejour des 
batiments de guerre Strangers dans les eaux territoriales rnari- 
times et les ports de Royaume des Serbes, Croates et Slovenes. 

Art. l er . Ce Reglement n'est en vigneur qu'en temps de paix et 
n'est applicable qu'aux batiments de guerre des Etats non belli- 
gerants qui mouillent dans les ports et autres eaux territoriales 
maritimes du Royaume serbe-croate-slovene. 

2. Sont consideres comme batiments de guerre, non seulement 
les unites de combat qui battent pavilion de guerre, mais aussi les 
autres batiments de toute categoric arborant pavilion de guerre 
et naviguant au service des Etats dont ils ont droit de porter le 
pavilion. 

3. En temps normal, les batiments de guerre Strangers sont 
autorises, en principe, a visiter les ports et les eaux territoriales 



120 

maritimes du Royauine serbe-croate-slovene et a y mouiller a une 
distance moindre de 6 milles de la basse mer, le long du rivage 
et des iles ; mais sous la reserve que le no-mbre des batiments d'un 
meme Etat qui sejournent en meme temps dans les eaux men- 
tionnees du bassin adriatique ne soit pas superieur a trois. 

Toute visite de cette nature doit etre notifiee par la voie 
diplomatique babituelle de maniere a ce que l'annonce de la visite 
projetee parvienne au Gouvernement royal, autant que possible, 
au moins sept jours avant la date de l'arrivee. 

Le sejour des bailments en question dans nos ports et eaux 
territoriales ne pourra depasser huit jours. Ces batiments sont 
tenus de prendre le large dans les six lieures, si les autorites 
competentes l'exigent, que ce delai de lm.it jours soit ou non 
ecoule. 

4. Les prescriptions" de l'Article 3 ne concernent pas : 

( a ) Les batiments de guerre qui ont a leur bord des Souverains, 
des Chefs d'Etats, des membres de dynasties regnantes et leur 
suite, des chefs de missions diplomatiques accredits aupres du 
Gouvernement royal et autres personnalites se trouvant dans une 
position analogue; 

(b) Les batiments de guerre etrangers qui ont regu l'autorisa- 
tion speciale du Gouvernement royal. Gette autorisation doit etre 
delivree prealablement par la voie diplomatique, a moins qu'elle 
ne decoule d'accords internationaux ; 

(c) Les batiments de guerre etrangers qui entrent et sejournent 
dans les eaux territoriales du Royaume serbe-croate-slovene a la 
suite d'un naufrage ou d'un cas de force majeure, pour le temps 
que ces causes subsistent. 

5. Lorsqu'un batiment de guerre etranger entre dans un port ou 
accoste sur une rade n'offrant pas une importance militaire mari- 
time speciale, 1'autorite militaire maritime competente ou l'auto- 
rite du port lui assignera un poste de mouiilage. Si un batiment 
de guerre etranger mouille avant d'avoir pris contact avec les 
autorites competentes et gene, par sa position au mouiilage, la 
navigation ou les travaux dans le port, 1'autorite exigera qu'il 
change de mouiilage et lui donnera les indications necessaires a 
cet effet. L'officier (ou fonctionnaire) charge de la mission ci- 
dessus mentionnee, apres les formalites des prescriptions sani- 
taires, remettra entre les mains du commandant du batiment de 
guerre etranger un exemplaire du present Reglement et l'invitera 
a remplir le questionnaire prescrit pour usage officiel ulterieur. 

Dans le cas ou les circonstances sanitaires ne permettraient pas 
d'accorder " libre pratique " au batiment de guerre etranger, les 
dispositions generales du Reglement sur le service dans le port 
seron t a ppl iquees . 



121 

6. A l'arrivee ainsi qtfau depart d'un batiment de guerre 
etranger dans un port ou poste de mouillage se trouvant dans une, 
zone d'importance speciale pour la marine de guerre, le batiment 
est tenu, si les autorites locales l'exigent, de prendre a son bord 
un officier de conduite ou autre personnage officiel charge de cette 
fonction, qui invitera le commandant du batiment de guerre- 
etranger a remplir le questionnaire mentionne a l'Article prece- 
dent et fournira a ce commandant toutes les instructions relatives 
a la navigation, au lieu et au mode de mouillage, au depart, ainsii 
qu'a toutes les conditions requises par les circonstances locales. 
Le commandant du navire etranger est tenu de se eonformer a- 
ces prescriptions. Ce service est gratuit. 

Le Gouvernement royal n'assume aucune responsabilite pour 
les dommages et avaries qui surviendraient eventuellement dans 
ce eas, a l'arrivee ou au depart du batiment. 

Le service susdit n'a rien de eommun avec le pilotage ordi- 
naire dont l'usage est facultatif pour le navire de guerre, non 
plus qu'avee le pilotage obligatoire dans les endroite ou celui-ci 
est expressement prescrit. 

7. Sont considerees comme zones ayant une importance mili- 
taire maritime: 

(a) L'ile de Krk (Veglia) ; 

(b) Les eaux territoriales dans le canal de Planina (canale^ 
Montagna), & Test du meridien-j- 15° 28.0' de Greenwich, y eom- 
pris la mer de Novigrad et de Karin, avec les d£troits qui en font: 
partie ; 

(c) Chibenik (Sebenico) et les eaux territoriales a l'interienr 
de la ligne Tribugne (Trebocconi)-Logoroum-Tiat-(cap Tiachtchi- 
tsa-cap Marin sur l'ile de Zlarin)-Zlarine et Tmara, y compris le 
port de Grebachtitsa (Sebenico Vecchio) ; 

(d) Boka Kotorska (Bouches de Cattaro) et les eaux terri- 
toriales voisines entre la latitude+42° 30.0' et+42 15.0'. 

8. Dans les ports et les endroits ou une batterie repond au 
salut par coups de canon, pour le moment Split (Spalato) et 
Ertzeg-Novi (Castelnuovo) dans les Bouches de Kotor (Cattaro), 
ainsi que dans les endroits ou stationnent ou viennent des bati- 
ments de guerre nationaux pouvant rendre les saluts d'artillerie, 
les batiments de guerre etrangers doivent effectuer le salut ter- 
ritorial, s'ils sont aptes, a coups de canon, en se conformant au 
ceremonial international en usage. 

9. Dans le cas ou Tintergt de l'Etat l'exigera, le Gouvernement 
royal se reserve le droit *d'interdire aux batiments de guerre 
etrangers le passage et le sejour en tout endroit compris dans les 
li mites des eaux territoriales du littoral national. Cette inter- 
diction k titre provisoire ou permanent sera notifiee, ainsi que la. 

1802 — 29k— 9 



122 

zone a laquelle elle sera applicable et tous renseignements pou- 
vant s'y rapporter' (par exemple danger des mines). La notifi- 
cation se fera par les avis en usage dans la marine, par les 
signaux semaphoriques, ou du bord des batiments nationaux. 
Les signaux seront emis soit d'aprSsi le code international des 
signaux, soit par un autre moyen utile de communication. Si le 
temps et les cireonstances le permettent, la notification de la 
mesure prohibitive pr^citee s'effectuera egalement par la vole 
diplomatique usuelle. 

10. Les batiments de guerre etrangers au mouillage dans un 
port ou dans les eaux territoriales sont tenus de respecter les 
prescriptions de douane, de police et de sante maritime qui sont 
en vigueur. De meme, ils sont tenus de se conformer a tous les 
reglements locaux auxquels sont assujettis les batiments de la 
marine nationale. A cet effet, l'autorite locale competente fournira 
au commandant etranger toutes les informations necessaires. 

II n'est pas permis aux batiments de guerre etrangers se 
trouvant a l'interieur des eaux territoriales de faire des travaux 
geodesiques et hydrographiques, ni d'effectuer des releves de 
terrain et des recherches ; mais ils sont autorises a employer le 
bathometre (appareil destine a sonder les prof ondeurs ) en vue 
de la navigation. II leur est egalement defendu d'effectuer sans 
autorisation prealable des exercices militaires tels que tirs, lance- 
ment de torpilles, mouillage de mines, d&barquements de troupes, &c. 

En outre, les navires de guerre etrangers ne pourront effecl.uer 
aucun travail sous la surface de l'eau sans la permission de 
l'autorite locale. 

Les sous-marins etrangers, dans toutes les eaux territoriales, 
ne pOurront naviguer qu'en surface. Pendant leur sejour clans 
les ports et les mouillages, ils devront rester en surface et ne 
pourront effectuer, sans autorisation, aucun exercice de plongee. 

Les -appareils de navigation aerienne embarques, escortes ou 
remorques par des batiments de guerre ou autres batiments ne 
pourront survoler les eaux territoriales. 

II est interdit aux batiments de guerre etrangers, sans per- 
mission de l'autorite locale competente, d'envoyer des hommes 
armes & terre pour y effectuer des exercices, des services de 
patrouille, de garde, de ceremonial funebre ou autre, ou dans 
tout autre dessein. 

Les officiers et sous-officiers ne sont autorises a porter que les 
armes blanches faisant partie de leur tenue. 

Le nombre des hommes autorises k debarquer ainsi que les 
heures de la descente a terre et de la rentree a bord devront 



123 

:faire l'objet d'un accord prealable entre les autoiit6s du bord et 
les autorites locales militaires et civiles. A cette occasion, il y 
aura lieu de tenir eompte de la presence eventuelle des batiments 
de guerre d'autres liltats. 

Les embarcations circulant dans les ports et les eaux terri- 
toriales ne pourront pas etre arm6es. 

Aucune peine capitale ne pourra §tre mise a execution dans les 
eaux territoriales. 

11. Dans le cas d'un conflit arme entre d'autres liltats, conflit 
ou le Royaume serbe-croate-slovene resterait neutre, les regies 
et les normes generates du droit international maritime ainsi 
-que les Conventions eventuelles prevoyant ce cas seront en vigueur 
dans les ports du littoral national et les eaux territoriales. 

12. II incombe de veiller a l'accomplissement du present Regle- 
ment aux autorites locales de la marine de guerre ou, a leur 
defaut, aux autorites civiles du port ou, a defaut de celles-ci, 
aux autorites de l'armee de terre, ou, enfln, a defaut de ces der- 
nidres, aux autorites civiles locales. 

13. Les batiments de guerre etrangers qui ne se seraient pas 
-conformes aux prescriptions de ce Reglement seront invites officiel- 
lement a s'y soumettre. Dans le cas de desobeissance, les auto- 
rites competentes deposeront une protestation formelle entre les 
mains du commandant de batiment de guerre etranger ; en meme 
temps, elles aviseront d'urgence par depeche leurs superieurs 
directs et porteront simultanement directement a la connaissance 
•des Ministres des Affaires etrangeres, de la Guerre et de la Marine, 
de l'lnterieur et des Communications l'incident, les motifs de la 
protestation et la situation creee. 

14. Le present Reglement entrera en vigueur trente jours a 
"Compter de sa publication dans le "Journal officiel " due Royaume 
<les Serbes, Croates et Slovenes. 

Le 20 juin 1924, a Bled. 

Alexandre. 
Le Ministre de la Guerre et de la Marme, 

aide de camp d'honneur de Sa Majesty le Roi, 
ge'ne'ral d'arm^e, 
Pierre Pechitch. 

(120 Brit, and For. State Papers, p. 913.) 



124 



VII 



Venezuelan Law relative to the Admission of Foreign Ships of 
War into the Territorial Waters and Ports of Venezuela. 
Caracas, June 26, 1920 

[Translation] 

The Congress of the United States of Venezuela decrees : 
Art. 1. In times of peace, foreign war vessels, having announced 
their visit through the diplomatic channel, are allowed to enter 
into the territorial waters and the seaports of Venezuela open to 
foreign trade. The number of ships flying the same flag in the 
territorial waters and ports of the Republic shall not be more than 
three. For entering into inland waters an authorisation of the 
Ministry for Foreign Affairs is required. 

2. No war vessel shall stay more than fifteen days in Vene- 
zuelan territorial waters and ports, except by special authorisation 
of the Federal Executive, and they must leave within six hours if 
so demanded by the national authority, even though the period 
fixed for their stay has not expired. 

The Federal Executive can modify the provisions of the two 
preceding Articles if special circumstances so require. 

3. The provisions of Articles 1 and 2 are not applicable in the 
cases of : — 

(1) Foreign warships, the admission of which has been author- 
ised through the diplomatic channel in exceptional conditions. 

(2) Ships which, on account of danger, bad weather, or other 
unforeseen causes have been obliged to take refuge in ports, so 
long as these conditions last. 

(3) Ships carrying Chiefs of State, members of the reigning 
dynasty, or diplomatic officials, or a mission to the Venezuelan 
Government. 

4. It rests with the harbour-master to point out and change the 
moorings of foreign warships. 

5. Foreign war vessels in ports or territorial waters shall be 
bound to respect the laws and regulations concerning police, 
health, finance and harbour. They shall also comply with all the 
regulations of the port relative to vessels of the national navy. 

6. Foreign warships in Venezuelan waters are absolutely pro- 
hibited from doing topographical and hydrographical works, from 
sketching or taking soundings and from performing any submarine 
work with or without divers ; neither can they carry out exer- 
cises of landing, target or torpedo practices. 

The harbour-master, in agreement with the commander of the 
ship, shall determine the number of men allowed to land at one 
time, and the time for landing and returning on board. 



125 

7. No death warrant shall be executed in any foreign warship 
during her stay in territorial waters. 

8. No armed member of the crew shall be allowed to land. 
Officers and ratings are only allowed to carry arms forming a 
part of their uniform. 

9. In cases of funeral honours or other solemnities, the Minister 
of War and Marine can grant a permit for the landing of an 
.armed detachment accompanying the procession. 

10. In the case of any foreign warship not acting in conformity 
with the rules laid down in this Law, the local naval or military 
authority shall in the first place draw the attention of the officer 
commanding to the infringement, and formally demand the ob- 
servance of the regulations. Should this not lead to any result, 
lie shall report the same to the Minister of War and Marine, who 
-can decide to invite the ship to depart forthwith from the port 
and territorial waters. 

11. On the arrival of one or more warships at a Venezuelan 
port, an official shall be sent to salute the commander of the 
foreign naval force. This official shall inform the said commander 
of the regulations which he is to observe, and ask for the names 
of the ship or ships, the names of their commanders, an indication 
of their war material, the name of the port whence they come, 
the period during which they intend to stay, and the state of 
health on board. 

12. The access of submarines belonging to foreign nonbelligerent 
Powers to Venezuelan ports or waters is governed by the provi- 
sions of this Law. Submarines are allowed to enter into terri- 
torial waters only by day, and shall navigate on the surface and 
fly their national flag. 

13. The admission and stay of warships of belligerent nations 
shall be governed by the provisions contained in the XHIth Con- 
vention of The Hague. 

14. In the event of war between two foreign nations, the 
Federal Executive can prohibit war submarines of the belligerent 
Powers from entering, navigating or staying in Venezuelan terri- 
torial waters and ports, but they may make an exception in the 
case of submarines obliged to enter into territorial waters on 
account of damage, state of weather, or with the object of saving 
human lives. In such cases the submarine shall navigate on the 
surface, fly the flag of its nationality and the international signal 
indicating the reason of its entering the territorial waters, which 
it shall leave as soon as the reasons justifying its entrance have 
ceased, or when so ordered by the Federal Executive. 

15. The Federal Executive shall have the right of limiting and 
even prohibiting absolutely the admission of foreign warships in 
case of war or danger of war. 



126 

The admission and stay of foreign warships shall be subject to- 
regulations which may be issued as occasion arises. 

The provisions of this Law are applicable to auxiliary vessels- 
of the war navy; to armed transports or armed hydroplanes. 

The Federal Executive is authorised to promulgate rules con- 
cerning the admission of warships in war time. 
The Decree of the 11th May, 1832, is hereby repealed. 
Given in the Legislative Federal Palace in Caracas the 26th 
day of June, 1920 — year 111 of Independence and 62 of Federation. 

[L. S.] D. A. Coronil, 

President. 
[L. S.] M. Toeo Chimies, 

Vice-President,. 
[L. S.] Pablo Godoy Fonseca, 

Secretary: 
[L. S.] R. Cayama Martinez, 

Secretary. 
Federal Palace, Caracas, June 30, 1920 — year 111 of Inde- 
pendence and 62 of Federation. 
To be executed and its execution to be seen to. 

[L. S.] V. Marqtjez Bustiixos, 

[L. S.] E. Gil Borges, 

Minister for Foreign Affairs.. 
(113 Brit, and For. State Papers, p. 1202.) 



INDEX 

Fag© 
Ancipitis usus 4, 14 

Argentina, armed merchant vessels : 97 

Armed merchant vessels 73, 103 

Argentina 97 

British Admiralty opinion, 1916 1 93 

British assurances, 1914 81 

British attitude, pre-war i 75 

British attitude, 1916 . 87 

Chilean rules, 1914 98 

Cuban policy 100 

Early British notes in World War 77 

For defense 75, 81, 83 

German attitude, 1913 77 

German view, 1916 87 

In neutral ports 82, 103 

In United States ports 81, 100, 103 

Netherlands position . 94 

Peaceable 91 

Professor Hyde's opinion 92 

Status^ 83, 89, 92 

Treatment 85, 105 

United States attitude 74 r 75,. 83, 85, 89 

Warlike, 91 

Assurance. (See Letters of assurance.) 

Auxiliary naval vessels, resumption of merchant status 99 

Barker v. Blakes 51 

Belgian regulations, admission of war vessels to ports and 

harbors 106, 110 

Belligerent rights 9 

In maritime warfare 49 

Bermuda, The 56 

Bernisse, The, and The Elve 64 

Court decision 67 

"Black Lists" 34 

Blockade 22 

Position of Admiral Rodgers, 1 923 27 

Bonna, The 25 

Capture, law of___l l- 44 

Carthage, The 52 

127 



128 INDEX 



Certification 31, 37 

Doctor Lawrence on 38 

Letters of assurance 39 

Professor Hyde's comment 38 

Treaty provisions 36 

Chile: 

Armed merchant vessels 98 

Auxiliary vessels 99 

Coal, contraband 4, 5, 7 

Commerce, effect of war on (see also Trade) 9 

Condemnation 17, 56, 57 

Consignments, contraband 26 

Continuous voyage 18, 22 

British decisions in World War 24 

Contraband 28, 54, 57 

Absolute__ 8 

Ancipitis usus 4, 14 

British and continental views 14 

British decisions in World War 23 

British statement, 1916 21 

Carriage of 16 

Carrier, risk of - 9 

Categories 23 

Classification 5, 6, 20, 24 

Coal 4, 5 

Conditional 3, 5, 6, 7, 28 

Controversies on 6 

Declaration of London 8 

Declaration of Paris 4 

Definition 2 

Delivery of goods 12 

Department of State, 1915, on 17 

Destination 5, 8, 11, 13, 18, 26 

Doctrine of, Judge Moore's views on 29 

Early practice 3 

Grotius's classification of 2 

International consideration 7 

Xater attitudes ----- 4 

Liability 9, 11, 41 

Lists 6, 14, 23, 28, 41 

Owner, risk of 9 

Parliamentary discussion, 1916 20 

Penalty for carrying . 9 

Peterhoff, The 6 

Position of Admiral Rodgers 27 



INDEX 129 

Contraband — Continued. Page 

Proposal to prohibit export of 35 

Ratio in cargo 15, 17, 41 

Treaties 12 

Treaty between the United States and Prussia, 1799__ 6 

Conversion 78, 84, 103, 104 

On high seas 80 

Convoy, right of, British-Dutch correspondence 31 

Cuban policy, armed merchant vessels 100 

"Danger zone" 65 

Danish regulations, admission of foreign war vessels to ports 

and territorial waters 113 

Declaration of London 13,22 

Contraband 8, 28 

Declaration of Paris 4, 74 

Destination 11 

Contraband 5, 8 

Doubtful 13 

Ultimate 26,41 

Dutch proclamation, effect on armed merchant vessels 94 

Dutch vessels: 

Convoying 31 

Taking into port 64 

Frye, William P 12 

Grotius, contraband, classification of 2 

Hakan, The 16 

Interference, neutral commerce 70 

Italian decree, use of radiotelegraphy and raidotelephony 

by foreign warships 116 

Jonge Margaretha, The 11 

Kim, The 25 

Letters of assurance, 1917 39,41 

Maria, The 1 45 

Maritime laws, effect of modern conditions on 48 

Merchant vessels: 

Armed. (See Armed merchant vessels.) 
Arming of — 

Early policy of United States 74 

United States memorandum, 1914 83 

Certification 31, 34 

Confiscation for carrying contraband 15 

Conversion 79, 84, 104 

United States, 1914, on 80 

Delivery *)f contraband 12 

Enemy, destruction of 57 

Public ownership 105 



130 INDEX 

Merchant vessels — Continued. Page 

Ratio of contraband in cargo 15 

Resistance of 95 

Resumption of status by auxiliary naval vessels 99 

Seizure 42, 51 

Neutral commerce : . 

Control of 69 

Interference with 70 

Neutral liability, armed merchant vessel in port 103 

Neutral ports (see also Ports) : 

Armed merchant vessels, admission of 84 

Armed merchant vessels in 82, 103 

British armed merchant vessels in United States 100 

Restriction of use : 78, 85 

Neutral rights: 

In commerce, restraints on 9 

In maritime warfare 49 

Sir Erie Richards's views 28 

Neutral trade, British method of determining character of _ _ 68 
Neutral waters: 

Arming of merchant vessels in 77 

Restriction in : 78 

Neutrals, prohibition of export of contraband by 35 

Neutrality 10, 49, 82, 96 

Department of State, 1915 17 

Development of _ _ 2 

Dutch proclamation 94 

Rights of trade 27 

Norwegian regulations, admission of foreign warship to ports 

and harbors 117 

Oxford Manual of Naval War, 1913 47 

Peterhoff, The , 6 

Piracy 73 

Ports, admission of foreign warships to: 

Belgian 106, 110 

Danish 113 

Norwegian 117 

Serb-Croat-Slovene : 119 

Venezuelan . 124 

Prinz Eitel Friedrich 12 

Privateering 74 

Radiotelegraphy and radiotelephony, Italian decree regulat- 
ing use of by foreign warships 116 

Reconversion 103 

Reprisals : 69 

Retaliation 57 



INDEX 131 

Page 

Routing merchant vessels 71 

Search at sea 59 

French Ministry of Marine, view of 63 

Search. {See Vessels, sending into port for.) 

Seizure: 

Oxford Manual of Naval War 47 

Responsibility for 42 

Serb-Croat-Slovene State, regulation regarding admission of 

foreign warships to its ports and territorial waters. 119 

Submarine warfare, German ._._ _ 85, 102 

Submarines 86 

Effect of arming merchant vessels 101 

Territorial waters, admission of foreign warships to: 

Belgian 106, 110 

Danish 113 

Norwegian . 117 

Serb-Croat-Slovene 119 

Venezuelan r : 124 

Trade: 

Interference with ; 19 

Neutral rights of __ ■_- 27 

Treaties: 

Certification 36 

Great Britain and Holland, 1625 3 

Great Britain and United Netherlands, 1667 12 

Great Britain and United States, 1871 78 

Sweden and United States, 1783 12 

United States and Prussia, 1799 6, 12 

Unneutral service . 57 

Venezuelan law, admission of foreign warships to territorial 

waters and ports 124 

Vessels : 

Conversion ^ 80, 103, 104 

Effect on maritime law of change in character of 48 

Liability, ratio determining 41 

Private, visit and search 47 

Public, visit and search 47 

Routing ^ 71 

Seized, Admiral Jellicoe on treatment of . 30 

Sending into port of seized 46 

Sending into port for search 51, 54, 61, 63, 64, 67, 69, 71 

Visit and search: 

Adaptation to modern conditions 56 

American and British positions, 1915-16 58 

American-British notes, 1914-15 53 

At sea 59 



132 INDEX 

Visit and search — Continued. Page 

Bringing in for 51, 54, 61, 63, 64, 67, 69, 71 

British position, 1799 45 

British view, 1914 51 

Early understanding 44 

Sir Edward Grey on 58 

Hall's opinion, 1921 49 

Method 59 

Naval War College discussions 43 

Oxford Manual of Naval War 47 

Place 51, 55 

Right of, in case of convoyed vessels 33 

Statement of British attorney general, 1917 48 

War, effect on commerce 9 

Warships, foreign: 

Admission to Belgian ports and waters 106, 110 

Admission to Danish ports and territorial waters 113 

Admission to Norwegian ports and harbors 117 

Admission and sojourn in waters and ports of Serb- 
Croat-Slovene State 119 

Admission to Venezuelan territorial waters and ports. _ 124 

War zone, German > 57, 102 

Zamora, The 44,58 

o